Taboada vs. Rosal GR L-36033.

November 5, 1982
FACTS Petitioner Apolonio Taboada filed a petition for probate of the will of the late Dorotea perez. The will consisted of two pages,
the first page containing all the testamentary dispositions of the testator and was signed at the end or bottom of the page by the
testatrix alone and at the left hand margin by the three instrumental witnesses. The second page consisted of the attestation clause and
the acknowledgment was signed at the end of the attestation clause by the three witnesses and at the left hand margin by the testatrix.
The trial court disallowed the will for want of formality in its execution because the will was signed at the bottom of the page solely by
the testatrix, while the three witnesses only signed at the left hand margin of the page. The judge opined that compliance with the
formalities of the law required that the witnesses also sign at the end of the will because the witnesses attest not only the will itself but
the signature of the testatrix. Hence, this petition.
ISSUE Was the object of attestation and subscription fully when the instrumental witnesses signed at the left margin of the sole page
which contains all the testamentary dispositions?
HELD
(SHORT RULING)
On certiorari, the Supreme Court held a) that the objects of attestation and subscription were fully met and satisfied in the present case
when the instrumental witnesses signed at the left margin of the sole page which contains all the testamentary dispositions, especially
so when the will was properly identified by a subscribing witness to be the same will executed by the testatrix; and b) that the failure of
the attestation clause to state the number of pages used in writing the will would have been a fatal defect were it not for the fact that it is
really and actually composed of only two pages duly signed by the testatrix and her instrumental witnesses.

(LONG RULING [VERBATIM])

Undoubtedly, under Article 805 of the Civil Code, the will must be subscribed or signed at its end by the testator himself or by the
testator's name written by another person in his presence, and by his express direction, and attested and subscribed by three or more
credible witnesses in the presence of the testator and of one another.
It must be noted that the law uses the terms attested and subscribed. Attestation consists in witnessing the testator's execution of the
will in order to see and take note mentally that those things are done which the statute requires for the execution of a will and that the
signature of the testator exists as a fact. On the other hand, subscription is the signing of the witnesses' names upon the same paper
for the purpose of identification of such paper as the will which was executed by the testator. (Ragsdale v. Hill, 269 SW 2d 911).

The signatures of the instrumental witnesses on the left margin of the first page of the will attested not only to the genuineness of the
signature of the testatrix but also the due execution of the will as embodied in the attestation clause.
While perfection in the drafting of a will may be desirable, unsubstantial departure from the usual forms should be ignored, especially
where the authenticity of the will is not assailed. (Gonzales v. Gonzales, 90 Phil. 444, 449).
The law is to be liberally construed, "the underlying and fundamental objective permeating the provisions on the law on wills in this
project consists in the liberalization of the manner of their execution with the end in view of giving the testator more freedom in

expressing his last wishes but with sufficient safeguards and restrictions to prevent the commission of fraud and the exercise of undue
and improper pressure and influence upon the testator. This objective is in accord with the modern tendency in respect to the formalities
in the execution of a will" (Report of the Code Commission, p. 103).
The objects of attestation and of subscription were fully met and satisfied in the present case when the instrumental witnesses signed at
the left margin of the sole page which contains all the testamentary dispositions, especially so when the will was properly identified by
subscribing witness Vicente Timkang to be the same will executed by the testatrix. There was no question of fraud or substitution
behind the questioned order.

Payad vs. Tolentino G.R. No. 42258. January 15, 1936

Victorio Payad filed a petition for the probate of the will of the decedent Leoncia Tolentino. This was opposed by Aquilina Tolentino,
averring that said Will was made only after the death of the testatrix. The lower court denied the probate of the will on the ground that
the attestation clause was not in conformity with the requirements of the law since it was not stated therein that the testatrix caused
Atty. Almario to write her name at her express direction. Hence, this petition.
Was it necessary that the attestation clause state that the testatrix caused Atty. Almario to write her name at her express direction?
The evidence of record establishes the fact the Leoncia Tolentino, assisted by Attorney Almario, placed her thumb mark on each and
every page of the questioned will and that said attorney merely wrote her name to indicate the place where she placed said thumb
mark. In other words Attorney Almario did not sign for the testatrix. She signed by placing her thumb mark on each and every page
thereof. A statute requiring a will to be signed is satisfied if the signature is made by the testators mark. (Quoted by this court from 28
R. C. L., p. 117; De Gala vs. Gonzales and Ona, 53 Phil., 104, 108.) It is clear, therefore, that it was not necessary that the attestation
clause in question should state that the testatrix requested Attorney Almario to sign her name inasmuch as the testatrix signed the will
in question in accordance with law.

G.R. No. L-4067

November 29, 1951

In the Matter of the will of ANTERO MERCADO. ROSARIO GARCIA, petitioner, vs.
JULIANA LACUESTA, ET AL.,
The will of Antero Mercado was disallowed. The will is written in the Ilocano dialect and contains the following attestation
clause:
We, the undersigned, by these presents to declare that the foregoing testament of Antero Mercado was signed by himself
and also by us below his name and of this attestation clause and that of the left margin of the three pages thereof. Page
three the continuation of this attestation clause; this will is written in Ilocano dialect which is spoken and understood by the
testator, and it bears the corresponding number in letter which compose of three pages and all them were signed in the
presence of the testator and witnesses, and the witnesses in the presence of the testator and all and each and every one
of us witnesses.
In testimony, whereof, we sign this statement, this the third day of January, one thousand nine hundred forty three, (1943)
A.D.
(Sgd.) NUMERIANO EVANGELISTA
(Sgd.) BIBIANA ILLEGIBLE

(Sgd.) "ROSENDA CORTES

The will appears to have been signed by Atty. Florentino Javier who wrote the name of Antero Mercado, followed below by
"A reugo del testator" and the name of Florentino Javier. Antero Mercado is alleged to have written a cross immediately
after his name.
CA reversed the judgment of CFI of Ilocos Norte for failing (1) to certify that the will was signed on all the left margins of
the three pages and at the end of the will by Atty. Florentino Javier at the express request of the testator in the presence of
the testator and each and every one of the witnesses; (2) to certify that after the signing of the name of the testator by
Atty. Javier at the former's request said testator has written a cross at the end of his name and on the left margin of the
three pages of which the will consists and at the end thereof; (3) to certify that the three witnesses signed the will in all the
pages thereon in the presence of the testator and of each other.
Petitioner contended that there is no need for such recital because the cross written by the testator after his name is a
sufficient signature and the signature of Atty. Florentino Javier is a surplusage. Petitioner's theory is that the cross is as
much a signature as a thumbmark, the latter having been held sufficient by this Court in the cases of De
Gala vs. Gonzales and Ona, 53 Phil., 104; Dolar vs. Diancin, 55 Phil., 479; Payad vs. Tolentino, 62 Phil., 848;
Neyra vs. Neyra, 76 Phil., 296 and Lopez vs. Liboro, 81 Phil., 429.

Issue: WON the will is valid in view of the mere placing of the testator of a cross after his name written by other person.
Held: No, SC held that the attestation clause is fatally defective for failing to state that Antero Mercado caused Atty.
Florentino Javier to write the testator's name under his express direction, as required by section 618 of the Code of Civil
Procedure. It is not here pretended that the cross appearing on the will is the usual signature of Antero Mercado or even
one of the ways by which he signed his name. After mature reflection, we are not prepared to liken the mere sign of the
cross to a thumbmark, and the reason is obvious. The cross cannot and does not have the trustworthiness of a
thumbmark.
What has been said makes it unnecessary for us to determine there is a sufficient recital in the attestation clause as to the
signing of the will by the testator in the presence of the witnesses, and by the latter in the presence of the testator and of
each other.
**SC affirmed CA decision.

***** Forms of signing the testators name

In the matter of the will of MARIA SIASON Y MADRID DE LEDESMA, G.R. No. L-4132 March 23, 1908
The testatrix was ill and confined to her house, the execution of the will taking place in the sala where she lay upon a sofa.
The witnesses differ as to whether the testatrix from where she lay could read what was written at the table; and the first
witness, after signing, went away from the table. These two circumstances do not impair the validity of the execution of the
will. The witnesses being in the same apartment were all present and the statute does not exact that either they are the
testator shall read what has been written. Had one of the witnesses left the room or placed himself so remotely therein as
to be cut off from actual participation in the proceedings, then the subscription might not have taken place in his presence
within the meaning of the law.
A second objection is suggested on this appeal, that the signature to the instrument is defective. It ends in this form:
At the request of Seora Maria Siason.
CATALINO GEVA.
T. SILVERIO. FRUCTUOSO G. MORIN.
RAFAEL ESPINOS.
Issue: WON the will is valid
Section 618 of the Code of Civil Procedure reads as follows:
Requisites of will. No will, except as provided in the preceding section, shall be valid to pass any estate, real of
personal, nor charge or effect the same, unless it be in writing and signed by the testator, or by the testator's name written

by some other person in his presence, and by his express direction, and attested and subscribed by three or more
credible witnesses in the presence of the testator and each of the other. The attestation shall estate the fact that the
testator signed the will, or caused it to be signed by some other person, at his express direction, in the presence of three
witnesses, and that they attested and subscribed it in his presence and in the presence of each other. But the absence of
such form of attestation shall not render the will invalid if it is proven that the will was in fact signed and attested as in this
section provided.
The misunderstanding of this section arising from the incorrect rendering of into Spanish in the official translation was
corrected by what was said in the decision of this court in Ex parte Arcenas (4 Phil. Rep., 700). Confusion has also come
out of the different wording of the two clauses of this section, the one specifying the requisites of execution and the other
those of the attestation clause. The concluding sentence of the section, however, makes clear that the former and not the
latter is to control.
Consequently the will must be signed by the testator, or by the testator's name written by some other person in his
presence, and by his express direction," and the question presented in this case is, Are the words "Seora Maria Siason"
her name written by some other person? They undoubtedly are her name, but occurring as they do after the words "at
request of," it is contended that they form a part of the recital and not a signature, the only signature being the names of
the witnesses themselves.
InGuison vs. Concepcion (5 Phil. Rep., 551) it was held that there was no signature, although the attestation clause
which followed the will contained the name of the testatrix and was thereafter signed by the witnesses. The distinction
between that case and the present one is one of the extreme nicety, and in the judgment of the writer of this opinion
should not be attempted. The majority of the court, however, are of the opinion that the distinction is a tenable one
inasmuch as in the Concepcion will the name of the testatrix occurred only in the body of the attestation clause, after the
first signatures of the witnesses, whereas in this will it immediately follows the testament itself and precedes the names of
the witnesses.
In sustaining this form of signature, this court does not intend to qualify the decisions in Ex parte Santiago (4 Phil. Rep.,
692), Ex parte Arcenas, above quoted, or in Abaya vs. Zalamero.1 In the Arcenas case the court pointed out the correct
formula for a signature which ought to be followed, but did not mean to exclude any other form substantially equivalent.
The decision of the court below is reversed, without costs, and that court is directed to admit the instrument before it to
probate as the last will of the testatrix. So ordered.
*** Signature by Another
G.R. No. 2002

August 18, 1905

EX PARTE NEMESIO DELFIN SANTIAGO Probate proceedings,

This is an appeal from an order of the Court of First Instance of the Province of Bulacan denying probate of a certain
document, purporting to be the last will and testament of one Esperanza Cecilio, deceased, on the ground that the name
of the said Esperanza Cecilio was not attached to said document, either by herself or by some other person for her and at
her request.
The name of the deceased is nowhere attached to the instrument, but the concluding paragraph reads as follows
In witness whereof, and at my request, on account of my weakness and inability to sign my name, this document
has been written by Mr. Eugenio Agustines, and after having been executed and read to me I have caused him to
sign it, in this town of Polo, barrio of pariancillo, this 6th day of July, 1903
And to this is attached the signature of the said Eugenio Agustines, followed by the usual attesting clause and the
signatures of the witnesses.
It is contended that this is, in effect, and to all intents and purposes, the signature of the testratrix attached to the
document; that it is in accordance with the usual and legal form by which, under Spanish law, persons unable to write
have heretofore signed all written instruments; and that it comes fairly within the provisions of the first and second official
translations of section 618 of Act No. 190, prescribing the mode whereby last wills and testaments must be authenticated.

We are of opinion, however, that the signature of the deceased is not attached to the document in question in accordance
with the provisions of section 618 of Act No. 190, and that the form adopted is not sufficient to authenticate a will. It
matters not what may have been the form usually adopted prior to the publication of this act, or whether a particular form
of signature may be sufficient for the authentication of an ordinary written instrument. The form which must be adopted in
the signing of wills is expressly prescribed in this act, and must be followed. The English text is positive, clear, and explicit,
and prescribes, as one of the requisites of a valid will, that it be "signed by the testator, or by the testator's name written by
some other person in his presence and by his express direction."
It is true that the translation found in the first and second editions of Act No. 190, as published by the Philippine
Commission, is so imperfect as to raise grave doubts as to the meaning of this section, but section 1 of Act No. 63
provides that
In the construction of all acts which have been or shall be enacted by the United States Philippine Commission,
the English text shall govern, except that, in cases of ambiguity, omission, or mistake, the Spanish text may be
consulted to explain the English text.
Counsel for the appellant urges that since it is evident that the document in question was executed for and as the last will
and testament of the deceased, and as the manner in which the signature should be attached to a will is a mere formality,
the document should be admitted to probate, even though it be held that the formal authentication adopted by the
deceased was not in exact conformance with the method prescribed by law. We hold however, that "no proof of good faith
can avail or supply the requisites of the law," for any other rule would open the door to mistake and fraud, and tend to
encourage fraudulent imposition in the establishment of spurious wills. (Neil vs.Neil, 1 Leigh (Va.), 6)
In some English cases (In re Clark, 2 Curt., 329, and In re Blair, 6 Notes Cas., 529) it was held that it was "immaterial that
the person signing for the testator sign his own name instead of the name of the testator," and this is the contention of the
appellants in this case, but it is to be observed that the English Statute of Frauds (29 Carl. II, chap. 29) and the English
Statute of Wills (I Vict., chap., 26) under which these English decisions were rendered provide that a will, to be valid, must
be signed "by the testator or by some other person in his presence and by his direction," whereas our statute provides that
it must be signed "by the testator, or by the testator's name written by some other person, in his presence and by his
express direction."
The provisions of the imperfect Spanish translations, to which our attention has been directed, are strikingly similar, in
effect, to the English statute, and were we permitted to accept those translations as authoritative we might be compelled
to admit the force of the appellant's contention, but the English text of section 618 of Act No. 190, and the correct
translation of public laws enacted by the Philippine Commission, differs from the English statute in that it is expressly
provided therein, as one of the requisites to a valid will, that when signed by a person other than the testator it must be
signed by the testator's name, written by such other person.
The order appealed from is affirmed, with the costs of the appeal against the appellant. After the expiration of twenty days
judgment will be entered in conformity herewith and the cause will be returned to the lower court for execution. So
ordered.
Arellano, C.J., Torres, Mapa and Johnson, JJ., concur.
Willard, J., did not sit in this case.

G.R. No. 1708

August 24, 1905

EX PARTE PEDRO ARCENAS, FELISBERTA ACEVEDO, ET AL. Probate Proceedings.

On October 12, 1901, before Felipe Villasis y Castaeda, a notary public of the municipality of Capiz, and in the presence
of three witnesses, residents thereof, Jose de los Santos e Isada, also a resident of that city, executed his last will and
testament, and to this effect exhibited to the notary and attesting witnesses a private document purporting to be his last

will, and stated that he wished to acknowledge it as such; but the said testator, on account of his ill health, did not sign the
same, and at his own request the witness Naval Amisola Vidal y Reyes signed in his stead. The other witnesses and the
notary public also signed the testament.
Subsequently Pedro Arcenas, one of the executors under the said will, presented the same for probate, the usual
proceedings were had in the Court of First Instance, and notwithstanding the fact that the parties interested were cited, no
one appeared to oppose the probating of the said will. Sandalio Garcia and Andres Protasio, two of the witnesses to the
will, were examined. They testified under oath that the testator had voluntarily executed the same but on account of his ill
health did not sign, the witness Naval A. Vidal signing in his stead at the testator's request; they further testified that the
attesting witnesses had signed the will in the presence of each other. At this stage of the proceedings the clerk presented
to the judge the register of public instruments for the year 1901, where the original of the said will was recorded.
The two heirs named in the will, to wit, Felisberta and Jose Acevedo, petitioned the court on the 28th day of September,
1902, to examine the notary Villasis, and the witness Naval Amisola Vidal as to the authenticity of the will itself, but the
court, without passing upon this petition, in a decision rendered October 1, 1903, disallowed the said will on the ground
that it was not signed by the testator Jose de los Santos, nor by the testator's name written by Naval A. Vidal, as required
by section 618 of the Code of Civil Procedure, and could not, therefore, be considered as the last will and testament of the
said Jose de los Santos. From this decision the said heirs appealed to this court.
The Code of Civil Procedure went into effect on the 1st day of October, 1901, as provided, in Act No. 212 of the Philippine
Commission, approved August 31, 1901, so that the said Code of Civil Procedure was in full force and effect on the 12th
day of October of the same year when the will in question was executed by the testator, Jose de los Santos e Isada, who,
as well as all the citizens of the Philippines Islands, was obliged to conform in the execution of wills with the law governing
the subject.
Section 618 of the Code of Civil Procedure, which relates to the requisites of will, repealed, among others article 695 of
the Civil Code, the second paragraph of which reads as follows:
Should the testator declare that he does not know how, or is not able, to sign, one of the attesting witnesses or
another person shall do so for him at his request, the notary certifying thereto. This shall also be done if any one
of the witnesses can not sign.
This provision of the Civil Code has been expressly modified by the provisions of section 618 of the Code of Civil
Procedure, which reads as follows:
No will, except as provided in the preceding section, shall be valid to pass any estate, real or personal, nor charge
or affect the same, unless it be in writing and signed by the testator, or by the testator's name written by some
other person in his presence, and by his express direction, and attested and subscribed by three or more credible
witnesses in the presence of the testator and of each other. The attestation shall state the fact that the testator
signed the will, or caused it to be signed by some other person, at his express direction, in the presence of three
witnesses, and that they attested and subscribed it in his presence and in the presence of each other. But the
absence of such form of attestation shall not render the will invalid if it is proven that the will was in fact signed
and attested as in this section provided.
The foregoing is, in the opinion of the American members of this court, a correct translation of the English text of the
section quoted.
It will be noticed from the above-quoted section 618 of the Code of Civil Procedure that where the testator does not know
how, or is unable, to sign, it will not be sufficient that one of the attesting witnesses signs the will at the testator's request,
the notary certifying thereto as provided in article 695 of the Civil Code, which, in this respect, was modified by section
618 above referred to, but it is necessary that the testator's name be written by the person signing in his stead in the place
where he would have signed if he knew how or was able so to do, and this in the testator's presence and by his express
direction; so that a will signed in a manner different than that prescribed by law shall not be valid and will not be allowed to
be probated.

Where a testator does not know how, or is unable for any reason, to sign the will himself, it shall be signed in the following
manner: "John Doe, by the testator, Richard Roe;" or in this form: "By the testator, John Doe, Richard Roe." All this must
be written by the witness signing at the request of the testator.
The English text of the before-mentioned section 618 of the Code of Civil Procedure is clear, this section not having been
modified since the promulgation of the said code, and if the Spanish translation of said code was incorrect in the first two
editions it has at last been corrected in a third edition thereof, and, in our opinion, the correct Spanish translation of the
said section is as quoted in this decision.
There is lacking in the testament in question an essential requisite which affects its validity, the omission of which can not
be excused by the erroneous translation in the first two editions of the said code, which translation is not such as would
justify a failure to comply with its provisions, since Act No. 63 of the Philippine Commission, approved December 21,
1900, provides that in the construction of all acts which have been enacted, or shall be enacted, by that legislative body
the English text shall govern, except that in obvious cases of ambiguity, omission, or mistake the Spanish text may be
consulted to explain the English text. In this case the English text is clear and, in the opinion of the American members of
this court, there is no ambiguity, omission, or mistake which would require a consultation of the Spanish text to explain it.
Therefore, under the law now in force, the witness Naval A. Vidal should have written at the bottom of the will the full
name of the testator and his own name in one of the forms given above. He did not do so, however, and this failure to
comply with the law is a substantial defect which affects the validity of the will and precludes its allowance,
notwithstanding the fact that no one appeared to oppose it.
The trail court states in its decision that from the evidence introduced the court is convince that the document in question
contained the last will of the deceased as to the disposition of his property; but no decision in this case would be proper
unless in strict accordance with the law, no matter how harsh such decision may be. The allowance of this defective will
would be a violation of the law.
The judgment appealed from should be affirmed and the will in question, executed at Capiz on the 12th of October, 1901,
by the deceased, Jose de los Santas e Isada, is hereby disallowed. After the expiration of twenty days judgment shall be
entered accordingly and the case remanded to the Court of First Instance for proceedings in conformity herewith. So
ordered.

ROMAN ABAYA, vs. DONATA ZALAMERO, G.R. No. L-3907

March 12, 1908

On the 6th of August, Roman Abaya filed a petition with the Court of First Instance of La Laguna, for the allowance of the
will executed by Juan Zalamero, a resident of Pagsanhan, in said province, on the 29th of October, 1905, and produced in
court the said will, which was written in Tagalog dialect. Donata Zalamero opposed the petition, alleging that the will had
been executed under pressure and unlawful and improper influence on the part of those who were to benefit thereby, and
that it had not been executed and signed in accordance with the provisions of section 618 of the Code of Civil Procedure.
A day was appointed for the hearing and in the course of the proceedings the witnesses offered by both parties were
examined; on the 10th of January, 1907, the court refused to admit the will of said Juan Zalamero, as requested by
Roman Abaya; Abaya appealed from the decision and moved for a new trial which motion has not been finally acted upon
by the court; for this reason the petitioner, now before this court, still insists thereon for the effects of the appeal which he
had interposed, and has submitted a certified copy of the proceedings to which the assignment of errors presented by him
refers.
Two points are presented. The first is, that Juan Zalamero, while in life, executed his will on the 29th of October, 1905,
under lawful pressure and influence exercised by those who were thereby benefited; and second, that the said will was
not executed and signed in accordance with the provisions of section 618 of the Code of Civil Procedure.
After an examination of the facts alleged and the evidence adduced by both parties, and considering the case according
to the rules of common sense and sound criticism, it must necessarily be admitted that the weight and preponderance of
the evidence prove in a conclusive manner the authenticity and genuineness of the said will as the real and true

expression of the will of the testator, Juan Zalamero, and for this reason the first point should have been decided by the
court below in a negative sense.
It was not expressly pretended that the said will should be disallowed under the provisions of section 634 of the Code of
Civil Procedure, either because the testator was insane or otherwise mentally incapable to execute such instrument at the
time of its execution, or because it was procured by undue and improper pressure and influence on the part of the
beneficiaries; nor even if such request had been made, could the nullity of the said will have been judicially declared in
view of the lack of satisfactory proof of the presence of such circumstances. Therefore, the court, in order to disallow the
petition, had to disregard them and rest the decision upon the allegation that the will was not executed in accordance with
the provisions of section 618 of the Code of Civil Procedure.
Notwithstanding the reasons stated in the judgment appealed from, it appears that the will in question was executed with
the requirements established by the law in force, and that, therefore, the decision upon the second point should be
against the opponents to the petition.
It is shown by the evidence, and by the will itself, that for the reasons set forth by the testator and at his own request, one
of the witnesses to the will, Mariano Zaguirre, wrote with his own hand the name and surname of Juan Zalamero, the
testator, and his presence, and that the latter put a cross between them and a note stating that what had been written
before the name and surname of the said Juan Zalamero, with the cross placed at the foot thereof, was his testament and
contained his last will as stated by him when he directed the execution thereof in the presence of the three witnesses who
subscribed it in his presence, and in the presence of each other.
It is true that the witness Mariano Zaguirre, who was requested by the testator to write his name and surname at the end
of his will, did not affix his own signature immediately below the name and surname of Juan Zalamero and below the
cross placed by the latter with the words "by request of the testator Juan Zalamero;" but in the said will are clearly stated
the reason why it was not signed by the testator himself as also the request he made to the witness Zaguirre, and a
repetition thereof was not necessary; further, that this same witness, upon being requested, wrote with his own hand the
name and surname of the testator, who afterwards placed the cross between them, stating that it was his statement, all of
which was written immediately after the said name and surname of the testator and the cross made by him, and the same
was subscribed by the three witnesses in the manner provided by law.
The essential requisites prescribed by the above-mentioned section 618 of the law have been complied with, namely, that
three witnesses were present at the execution of the will of Juan Zalamero at the date mentioned therein; that they heard
his statement that the said instrument, written and drawn up under his direction, contained his last will; that they saw and
witnessed when, at the express request of the testator, and under his direction, the witness, Mariano Zaguirre, wrote at
the foot of the will the name and surname of Juan Zalamero, and when the latter put the cross between his written name
and surname, each of the witnesses subscribing it at the time and in the presence of each other.
For the reasons hereinbefore set forth it is our opinion that the judgment appealed from should be reversed and that it be
declared, as we now do, that the will executed by the late Juan Zalamero while in life, under date of the 29th of October,
1905, was executed in accordance with the law, and that therefore it should be duly admitted in order that it may produce
all consequent legal effects, and it is so ordered without any special ruling as to costs.

**** Signature by another person

TOMAS GUISON, v. MARIA CONCEPCION, [G.R. No. 2586. January 19, 1906. ]
SYLLABUS
1. WILLS; INABILITY TO SIGN; SIGNATURE BY ANOTHER. The testatrix was not able to sign her name to the will,
and she requested another person to sign it for her. Instead of writing her name he wrote his own upon the will. Held, That
the will was not duly executed. (Following Ex No. 2002, August 18, 1905.)

DECISION
WILLARD, J. :
Jacoba Concepcion Salcedo made her will in Manila, on January 3, 1904. The last part of the will is as
follows:jgc:chanrobles.com.ph
"Asi lo otorgo ante los testigos Seores Ambrosio Reyes, Mariano de Leon y Felix Polintan, de Manila, Islas Filipinas, y
por no yo poder firmar, firma a mi ruego el mismo Feliciano Maglaqui, en mi presencia y de los mencionados testigos,
quienes tambien suscriben, cada uno de ellos en presencia de los otros y la mia.
"(Firmado) FELICIANO MAGLAQUI.
"(Firmado) AMBROSIO REYES.
"(Firmado) MARIANO DE LEON.
"(Firmado) FELIX POLINTAN.
"Nosotros Ambrosio Reyes, Mariano de Leon y Felix Polintan, atestiguamos que Filiciano Maglaqui, a ruego de la Sra.
Jacoba Concepcion Salcedo y en presencia de la misma y la nuestra, firmo el testamento que antecede; y que cada uno
de nosotros lo firmo en presencia de los otros y de dicha testadora.
"Manila, tres de Enero de mil novecientos cuatro.
"(Firmado) AMBROSIO REYES.
"(Firmado) MARIANO DE LEON.
"(Firmado) FELIX POLINTAN."cralaw virtua1aw library
It will be seen that the witness Feliciano Maglaqui, instead of writing the name of the testatrix on the will, wrote his own.
Probate of the will was refused in the court below on the ground that the name of the testatrix was not signed thereto, and
the petitioner has appealed. The question presented has been decided adversely to the appellant in the following cases:
Ex parte Pedro Arcenas Et. Al., 1 No. 1708, August 24, 1905 (4 Off. Gaz., 568); Ex parte Nemesio Delfin Santiago, 2 No.
2002, August 18, 1905 (4 Off. Gaz., 507.)
The judgment of the court below is affirmed, with the costs of this instance against the appellant, and after the expiration
of twenty days judgment should be entered in accordance herewith and the case remanded to the court below for
execution. So ordered.
******INSTRUMENTAL WITNESSES
G.R. No. L-3497

May 18, 1951

THE MATTER OF THE PROBATE OF THE LAST WILL AND TESTAMENT OF JOSE VENZON. VALENTINA
CUEVAS, petitioner-appellee,
vs.
PILAR ACHACOSO, oppositor-appellant.
Juan R. Arbizo and Antonio Gonzales for petitioner-appellee.
Mariano Trinidad and Luis J. Nepomuceno for oppositor-appellant.
BAUTISTA ANGELO, J.:
This is an appeal from an order of the Court of First Instance of Zambales admitting to probate the last will and testament
of the late Jose Venzon.

On January 19, 1946, Jose Venzon died in Iba, Zambales, leaving a will. In said will the deceased instituted as his heirs,
Valentina Cuevas, his widow and Rosario Asera Venzon, his daughter. He named therein his widow as executrix of the
will. On February 1, 1946, Valentina Cuevas filed a petition for the probate of said will.
On May 10, 1946, one Pilar Achacoso filed an alternative petition for the probate of a previous will executed by the
deceased praying therein that, if the will submitted by the widow be rejected, the other will be admitted to probate in lieu
thereof. In the previous will there are other heirs instituted, among them petitioner Pilar Achacoso. Pilar Achacoso
objected to the probate of the second will executed by the deceased on October 10, 1945. After due hearing, the court
found that the latter will was executed in accordance with law and ordered that it be admitted to probate. Pilar Achacoso
took the case to the Court of Appeals, but the latter certified it to this Court on the ground that it involves purely questions
of law.
The main error assigned refers to the alleged lack of attestation clause in the will under consideration, or to the fact that, if
there is such attestation clause, the same has not been signed by the instrumental witnesses, but by the testator himself,
and it is claimed that this defect has the effect of invalidating the will.
The will in question, after reciting in separate paragraphs, and under correlative numbers, the provisions of the will, winds
up with the following clause:
IN WITNESS WHEREOF, I sign this testament or last will in the municipality of Iba, Zambales, Philippines, this
10th day of October, 1945, in the presence of the three witnesses, namely Dr. Nestorio Trinidad, Don Baldomero
Achacoso, and Mr. Proceso Cabal as instrumental witnesses to my signing; this testament is written in three (3)
sheets marked by letter "A", "B" and "C" consecutively on top of each sheet and upon my request and in my
presence and also in the presence of each of the aforesaid instrumental witnesses, they also signed this
testament already reffered to.
I hereby manifest that every sheet of the aforesaid testament, on the left-hand margin as well as the testament
itself have been signed by me as also each of the witnesses has also signed in my presence and in the presence
of each other.

(Sgd.) JOSE VENZON

Witnesses:
(Sgd.) NESTORIO TRINIDAD
(Sgd.) BALDOMERO L. ACHACOSO
(Sgd.) PROCESO CABAL.
The clause above quoted is the attestation clause reffered to in the law which, in our opinion, substantially complies with
its requirements. The only apparent anomaly we find is that it appears to be an attestation made by the testator himself
more than by the instrumental witnesses. This apparent anomaly, as to affect the validity of the will, it appearing that right
under the signature of the testator, there appear the signatures of the three instrumental witnesses.
"Instrumental witness, as define by Escriche in his Diccionario Razonado de Legislacion y Jurisprudencia, Vol. 4, p. 1115,
is one who takes part in the execution of an instrument or writing" (In re will of Tan Diuco, 45 Phil., 807, 809). An
instrumental witness, therefore, does not merely attest to the signature of the testator but also to the proper execution of
the will. The fact that the three instrumental witnesses have signed the will immediately under the signature of the testator,
shows that they have in fact attested not only to the genuineness of his signature but also to the due execution of the will
as embodied in the attestation clause.
The attestation clause in question bears close similarity with the attestation clause in the will involved in Aldaba vs.
Roque, (43 Phil., 378). In that case, the attestation claused formed part of the body of the will and its recital was made by
the testratrix himself and was signed by her and by the three instrumental witnesses. In upholding the validity of the will,
the court said:

In reality it appears that it is the testratrix who makes the declaration about the points in the last paragraph of the
will; however as the witnesses together with the testratrix, have signed the said declaration, we are of the opinion
and so hold that the words above quoted of the testament constitute a sufficient compliance with the requirements
of Act No. 2645.
As was said in one case, "the object of the solemnities surrounding the execution of the wills is to close the door against
bad faith and fraud, to avoid substitution of wills and testaments and to guarantee their truth and authenticity. Therefore
the laws on this subject should be intrepreted in such a way as to attain this premordial ends. But on the other hand, also
one must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to make
a will. So when an interpretation already given assures such ends, any other interpretation whatsoever, that adds nothing
but demands more requisites entirely unnecessary, useless and frustrative of the testator's will, must be disregarded." (In
re will of Tan Diuco, supra, p. 811.) (Emphasis supplied.)
Expressive of this liberal view of interpretation, are also the following rules embodied in the new Civil Code. These
provisions, although not directly applicable, are however, significant because they project the point of view of our
legislature when it adopted them having in view the existing law and jurisprudence on the matter.
. 788. If a testamentary disposition admits of different interpretations, in case of doubt, that interpretation by which
the disposition is to be operative shall be preferred.
Art. 791. The words of a will are to receive an interpretation which will give to every expressions inoperative; and
of two modes of interpreting a will, that is to be preferred which will prevent intestacy.
Wherefore, the order appealed from is hereby affirmed, with costs against the appellant.

G.R. No. L-36033 November 5, 1982

IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE WILL OF DOROTEA PEREZ, (deceased):
APOLONIO TABOADA, petitioner,
vs.
HON. AVELINO S. ROSAL, as Judge of Court of First Instance of Southern Leyte, (Branch III, Maasin),respondent.
Erasmo M. Diola counsel for petition.
Hon. Avelino S. Rosal in his own behalf.

GUTIERREZ, JR. J.:

This is a petition for review of the orders issued by the Court of First Instance of Southern Leyte, Branch III, in Special
Proceedings No. R-1713, entitled "In the Matter of the Petition for Probate of the Will of Dorotea Perez, Deceased;
Apolonio Taboada, Petitioner", which denied the probate of the will, the motion for reconsideration and the motion for
appointment of a special administrator.
In the petition for probate filed with the respondent court, the petitioner attached the alleged last will and testament of the
late Dorotea Perez. Written in the Cebuano-Visayan dialect, the will consists of two pages. The first page contains the
entire testamentary dispositions and is signed at the end or bottom of the page by the testatrix alone and at the left hand
margin by the three (3) instrumental witnesses. The second page which contains the attestation clause and the
acknowledgment is signed at the end of the attestation clause by the three (3) attesting witnesses and at the left hand
margin by the testatrix.
Since no opposition was filed after the petitioner's compliance with the requirement of publication, the trial court
commissioned the branch clerk of court to receive the petitioner's evidence. Accordingly, the petitioner submitted his
evidence and presented Vicente Timkang, one of the subscribing witnesses to the will, who testified on its genuineness
and due execution.

The trial court, thru then Presiding Judge Ramon C. Pamatian issued the questioned order denying the probate of the will
of Dorotea Perez for want of a formality in its execution. In the same order, the petitioner was also required to submit the
names of the intestate heirs with their corresponding addresses so that they could be properly notified and could intervene
in the summary settlement of the estate.
Instead of complying with the order of the trial court, the petitioner filed a manifestation and/or motion, ex partepraying for
a thirty-day period within which to deliberate on any step to be taken as a result of the disallowance of the will. He also
asked that the ten-day period required by the court to submit the names of intestate heirs with their addresses be held in
abeyance.
The petitioner filed a motion for reconsideration of the order denying the probate of the will. However, the motion together
with the previous manifestation and/or motion could not be acted upon by the Honorable Ramon C. Pamatian due to his
transfer to his new station at Pasig, Rizal. The said motions or incidents were still pending resolution when respondent
Judge Avelino S. Rosal assumed the position of presiding judge of the respondent court.
Meanwhile, the petitioner filed a motion for the appointment of special administrator.
Subsequently, the new Judge denied the motion for reconsideration as well as the manifestation and/or motion filed ex
parte. In the same order of denial, the motion for the appointment of special administrator was likewise denied because of
the petitioner's failure to comply with the order requiring him to submit the names of' the intestate heirs and their
addresses.
The petitioner decided to file the present petition.
For the validity of a formal notarial will, does Article 805 of the Civil Code require that the testatrix and all the three
instrumental and attesting witnesses sign at the end of the will and in the presence of the testatrix and of one another?
Article 805 of the Civil Code provides:
Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or
by the testator's name written by some other person in his presence, and by his express direction, and
attested and subscribed by three or more credible witnesses in the presence of the testator and of one
another.
The testator or the person requested by him to write his name and the instrumental witnesses of the will,
shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the
pages shall be numbered correlatively in letters placed on the upper part of each page.
The attestation shall state the number of pages used upon which the will is written, and the fact that the
testator signed the will and every page thereof, or caused some other person to write his name, under his
express direction, in the presence of the instrumental witnesses, and that the lacier witnesses and signed
the will and the pages thereof in the presence of the testator and of one another.
If the attestation clause is in a language not known to the witnesses, it shall be interpreted to the
witnesses, it shall be interpreted to them.
The respondent Judge interprets the above-quoted provision of law to require that, for a notarial will to be valid, it is not
enough that only the testatrix signs at the "end" but an the three subscribing witnesses must also sign at the same place
or at the end, in the presence of the testatrix and of one another because the attesting witnesses to a will attest not merely
the will itself but also the signature of the testator. It is not sufficient compliance to sign the page, where the end of the will
is found, at the left hand margin of that page.
On the other hand, the petitioner maintains that Article 805 of the Civil Code does not make it a condition precedent or a
matter of absolute necessity for the extrinsic validity of the wig that the signatures of the subscribing witnesses should be
specifically located at the end of the wig after the signature of the testatrix. He contends that it would be absurd that the
legislature intended to place so heavy an import on the space or particular location where the signatures are to be found

as long as this space or particular location wherein the signatures are found is consistent with good faith and the honest
frailties of human nature.
We find the petition meritorious.
Undoubtedly, under Article 805 of the Civil Code, the will must be subscribed or signed at its end by the testator himself or
by the testator's name written by another person in his presence, and by his express direction, and attested and
subscribed by three or more credible witnesses in the presence of the testator and of one another.
It must be noted that the law uses the terms attested and subscribed Attestation consists in witnessing the testator's
execution of the will in order to see and take note mentally that those things are, done which the statute requires for the
execution of a will and that the signature of the testator exists as a fact. On the other hand, subscription is the signing of
the witnesses' names upon the same paper for the purpose of Identification of such paper as the will which was executed
by the testator. (Ragsdale v. Hill, 269 SW 2d 911).
Insofar as the requirement of subscription is concerned, it is our considered view that the will in this case was subscribed
in a manner which fully satisfies the purpose of Identification.
The signatures of the instrumental witnesses on the left margin of the first page of the will attested not only to the
genuineness of the signature of the testatrix but also the due execution of the will as embodied in the attestation clause.
While perfection in the drafting of a will may be desirable, unsubstantial departure from the usual forms should be ignored,
especially where the authenticity of the will is not assailed. (Gonzales v. Gonzales, 90 Phil. 444, 449).
The law is to be liberally construed, "the underlying and fundamental objective permeating the provisions on the law on
wills in this project consists in the liberalization of the manner of their execution with the end in view of giving the testator
more freedom in expressing his last wishes but with sufficient safeguards and restrictions to prevent the commission of
fraud and the exercise of undue and improper pressure and influence upon the testator. This objective is in accord with
the modern tendency in respect to the formalities in the execution of a will" (Report of the Code commission, p. 103).
Parenthetically, Judge Ramon C. Pamatian stated in his questioned order that were not for the defect in the place of
signatures of the witnesses, he would have found the testimony sufficient to establish the validity of the will.
The objects of attestation and of subscription were fully met and satisfied in the present case when the instrumental
witnesses signed at the left margin of the sole page which contains all the testamentary dispositions, especially so when
the will was properly Identified by subscribing witness Vicente Timkang to be the same will executed by the testatrix.
There was no question of fraud or substitution behind the questioned order.
We have examined the will in question and noticed that the attestation clause failed to state the number of pages used in
writing the will. This would have been a fatal defect were it not for the fact that, in this case, it is discernible from the entire
wig that it is really and actually composed of only two pages duly signed by the testatrix and her instrumental witnesses.
As earlier stated, the first page which contains the entirety of the testamentary dispositions is signed by the testatrix at the
end or at the bottom while the instrumental witnesses signed at the left margin. The other page which is marked as
"Pagina dos" comprises the attestation clause and the acknowledgment. The acknowledgment itself states that "This Last
Will and Testament consists of two pages including this page".
In Singson v. Florentino, et al. (92 Phil. 161, 164), this Court made the following observations with respect to the purpose
of the requirement that the attestation clause must state the number of pages used:
The law referred to is article 618 of the Code of Civil Procedure, as amended by Act No. 2645, which
requires that the attestation clause shall state the number of pages or sheets upon which the win is
written, which requirement has been held to be mandatory as an effective safeguard against the
possibility of interpolation or omission of some of the pages of the will to the prejudice of the heirs to
whom the property is intended to be bequeathed (In re will of Andrada, 42 Phil., 180; Uy Coque vs. Navas
L. Sioca, 43 Phil. 405; Gumban vs. Gorecho, 50 Phil. 30; Quinto vs. Morata, 54 Phil. 481; Echevarria vs.
Sarmiento, 66 Phil. 611). The ratio decidendi of these cases seems to be that the attestation clause must

contain a statement of the number of sheets or pages composing the will and that if this is missing or is
omitted, it will have the effect of invalidating the will if the deficiency cannot be supplied, not by evidence
aliunde, but by a consideration or examination of the will itself. But here the situation is different. While the
attestation clause does not state the number of sheets or pages upon which the will is written, however,
the last part of the body of the will contains a statement that it is composed of eight pages, which
circumstance in our opinion takes this case out of the rigid rule of construction and places it within the
realm of similar cases where a broad and more liberal view has been adopted to prevent the will of the
testator from being defeated by purely technical considerations.
Icasiano v. Icasiano (11 SCRA 422, 429) has the following ruling which applies a similar liberal approach:
... Impossibility of substitution of this page is assured not only (sic) the fact that the testatrix and two other
witnesses did sign the defective page, but also by its bearing the coincident imprint of the seal of the
notary public before whom the testament was ratified by testatrix and all three witnesses. The law should
not be so strictly and literally interpreted as to penalize the testatrix on account of the inadvertence of a
single witness over whose conduct she had no control where the purpose of the law to guarantee the
Identity of the testament and its component pages is sufficiently attained, no intentional or deliberate
deviation existed, and the evidence on record attests to the fun observance of the statutory requisites.
Otherwise, as stated in Vda. de Gil. Vs. Murciano, 49 Off. Gaz. 1459, at 1479 (decision on
reconsideration) 'witnesses may sabotage the will by muddling or bungling it or the attestation clause.
WHEREFORE, the present petition is hereby granted. The orders of the respondent court which denied the probate of tile
will, the motion for reconsideration of the denial of probate, and the motion for appointment of a special administrator are
set aside. The respondent court is ordered to allow the probate of the wig and to conduct further proceedings in
accordance with this decision. No pronouncement on costs.
SO ORDERED.
*****MEANING OF PRESENCE:
1. G.R. No. 6845

September 1, 1914

YAP TUA, petitioner-appellee,

vs.
YAP CA KUAN and YAP CA KUAN, objectors-appellants.
Chicote and Miranda for appellants.
O'Brien and DeWitt for appellee.
JOHNSON, J.:
It appears from the record that on the 23d day of August, 1909, one Perfecto Gabriel, representing the petitioner, Yap Tua,
presented a petition in the Court of First Instance of the city of Manila, asking that the will of Tomasa Elizaga Yap Caong
be admitted to probate, as the last will and testament of Tomasa Elizaga Yap Caong, deceased. It appears that the said
Tomasa Elizaga Yap Caong died in the city of Manila on the 11th day of August, 1909. Accompanying said petition and
attached thereto was the alleged will of the deceased. It appears that the will was signed by the deceased, as well as
Anselmo Zacarias, Severo Tabora, and Timoteo Paez.
Said petition, after due notice was given, was brought on for hearing on the 18th day of September, 1909. Timoteo Paez
declared that he was 48 years of age; that he had known the said Tomasa Elizaga Yap Caong; that she had died on the
11th day of August, 1909; that before her death she had executed a last will and testament; that he was present at the
time of the execution of the same; that he had signed the will as a witness; that Anselmo Zacarias and Severo Tabora had
also signed said will as witnesses and that they had signed the will in the presence of the deceased.
Pablo Agustin also declared as a witness and said that he was 40 years of age; that he knew Tomasa Elizaga Yap Caong
during her lifetime; that she died on the 11th day of August, 1909, in the city of Manila; that before her death she had

executed a last will and testament; that he was present at the time said last will was executed; that there were also
present Timoteo Paez and Severo Tabora and a person called Anselmo; that the said Tomasa Elizaga Yap Caong signed
the will in the presence of the witnesses; that he had seen her sign the will with his own eyes; that the witnesses had
signed the will in the presence of the said Tomasa Elizaga Yap Caong and in the presence of each other; that the said
Tomasa Elizaga Yap Caong signed the will voluntarily, and in his judgment, she was in the possession of her faculties; that
there were no threats or intimidation used to induce her to sign the will; that she signed it voluntarily.
No further witnesses were called and there was no further opposition presented to the legalization of the said will.
After hearing the foregoing witnesses, the Honorable A. S. Crossfield, judge, on the 29th day of September, 1909, ordered
that the last will and testament of Tomasa Elizaga Yap Caong be allowed and admitted to probate. The will was attached
to the record and marked Exhibit A. The court further ordered that one Yap Tua be appointed as executor of the will, upon
the giving of a bond, the amount of which was to be fixed later.
From the record it appears that no further proceedings were had until the 28th of February, 1910, when Yap Ca Kuan and
Yap Ca Llu appeared and presented a petition, alleging that they were interested in the matters of the said will and desired
to intervene and asked that a guardian ad litem be appointed to represent them in the cause.
On the 1st day of March, 1910, the court appointed Gabriel La O as guardian ad litem of said parties. Gabriel La O
accepted said appointment, took the oath of office and entered upon the performance of his duties as guardianad litem of
said parties. On the 2d day of March, 1910, the said Gabriel La O appeared in court and presented a motion in which he
alleged, in substance:
First. That the will dated the 11th day of August, 1909, and admitted to probate by order of the court on the 29th day of
September, 1909, was null, for the following reasons:
(a) Because the same had not been authorized nor signed by the witnesses as the law prescribes.
(b) Because at the time of the execution of the will, the said Tomasa Elizaga Yap Caong was not then mentally
capacitated to execute the same, due to her sickness.
(c) Because her signature to the will had been obtained through fraud and illegal influence upon the part of
persons who were to receive a benefit from the same, and because the said Tomasa Elizaga Yap Caong had no
intention of executing the same.
Second. That before the execution of the said will, which they alleged to be null, the said Tomasa Elizaga Yap Caong had
executed another will, with all the formalities required by law, upon the 6th day of August, 1909.
Third. That the said Yap Ca Kuan and Yap Ca Llu were minors and that, even though they had been negligent in
presenting their opposition to the legalization of the will, said negligence was excusable, on account of their age.
Upon the foregoing facts the court was requested to annul and set aside the order of the 29th day of September, 1909,
and to grant to said minors an opportunity to present new proof relating to the due execution of said will. Said petition was
based upon the provisions of section 113 of the Code of Procedure in Civil Actions.
While it is not clear from the record, apparently the said minors in their petition for a new trial, attached to said petition the
alleged will of August 6, 1909, of the said Tomasa Elizaga Yap Caong, and the affidavits of Severo Tabora, Clotilde and
Cornelia Serrano.
Upon the 10th day of March, 1910, upon the hearing of said motion for a rehearing, the Honorable A. S. Crossfield, judge,
granted said motion and ordered that the rehearing should take place upon the 18th day of March, 1910, and directed that
notice should be given to the petitioners of said rehearing and to all other persons interested in the will. At the rehearing a
number of witnesses were examined.
It will be remembered that one of the grounds upon which the new trial was requested was that the deceased, Tomasa
Elizaga Yap Caong, had not signed the will (Exhibit A) of the 11th of August, 1909; that in support of that allegation, the

protestants, during the rehearing, presented a witness called Tomas Puzon. Puzon testified that he was a professor and
an expert in handwriting, and upon being shown the will (of August 11, 1909) Exhibit A, testified that the name and
surname on Exhibit A, in his judgment were written by two different hands, though the given name is the same as that
upon Exhibit 1 (the will of August 6, 1909), because he found in the name "Tomasa" on Exhibit A a similarity in the tracing
to the "Tomasa" in Exhibit 1; that comparing the surname on Exhibit A with the surname on Exhibit 1 he found that the
character of the writing was thoroughly distinguished and different by the tracing and by the direction of the letters in the
said two exhibits; that from his experience and observation he believed that the name "Tomasa" and "Yap Caong,"
appearing in the signature on Exhibit A were written by different person.
Puzon, being cross-examined with reference to his capacity as an expert in handwriting, testified that while he was a
student in the Ateneo de Manila, he had studied penmanship; that he could not tell exactly when that was, except that he
had concluded his course in the year 1882; that since that time he had been a telegraph operator for seventeen years and
that he had acted as an expert in hand- writing in the courts in the provinces.
Gabriel La O was called as a witness during the rehearing and testified that he had drawn the will of the 6th of August,
1909, at the request of Tomasa Elizaga Yap Caong; that it was drawn in accordance with her request and under her
directions; that she had signed it; that the same had been signed by three witnesses in her presence and in the presence
of each other; that the will was written in her house; that she was sick and was lying in her bed, but that she sat up to sign
the will; that she signed the will with great difficulty; that she was signed in her right mind.
The said Severo Tabora was also called as a witness again during the rehearing. He testified that he knew Tomasa
Elizaga Yap Caong during her lifetime; that she was dead; that his signature as a witness to Exhibit A (the will of August
11, 1909) was placed there by him; that the deceased, Tomasa Elizaga Yap Caong, became familiar with the contents of
the will because she signed it before he (the witness) did; that he did not know whether anybody there told her to sign the
will or not; that he signed two bills; that he did not know La O; that he did not believe that Tomasa had signed the will
(Exhibit A) before he arrived at the house; that he was not sure that he had seen Tomasa Elizaga Yap Caong sign Exhibit
A because there were many people and there was a screen at the door and he could not see; that he was called a a
witness to sign the second will and was told by the people there that it was the same as the first; that the will (Exhibit A)
was on a table, far from the patient, in the house but outside the room where the patient was; that the will was signed by
Paez and himself; that Anselmo Zacarias was there; that he was not sure whether Anselmo Zacarias signed the will or
not; that he was not sure whether Tomasa Elizaga Yap Caong could see the table on which the will was written at the time
it was signed or not; that there were many people in the house; that he remembered the names of Pedro and Lorenzo;
that he could not remember the names of any others; that the will remained on the table after he signed it; that after he
signed the will he went to the room where Tomasa was lying; that the will was left on the table outside; that Tomasa was
very ill; that he heard the people asking Tomasa to sign the will after he was (the witness) had signed it; that he saw Paez
sign the will, that he could not remember whether Anselmo Zacarias had signed the will, because immediately after he
and Paez signed it, he left because he was hungry; that the place where the table was located was in the same house, on
the floor, about two steps down from the floor on which Tomasa was.
Rufino R. Papa, was called as a witness for the purpose of supporting the allegation that Tomasa Elizaga Yap Caong was
mentally incapacitated to make the will dated August 11, 1909 (Exhibit A). Papa declared that he was a physician; that he
knew Tomasa Elizaga Yap Caong; that he had treated her in the month of August; that he visited her first on the 8th day of
August; that he visited her again on the 9th and 10th days of August; that on the first visit he found the sick woman
completely weak very weak from her sickness, in the third stage of tuberculosis; that she was lying in bed; that on the
first visit he found her with but little sense, the second day also, and on the third day she had lost all her intelligence; that
she died on the 11th of August; tat he was requested to issue the death certificate; that when he asked her (Tomasa)
whether she was feeling any pain or anything of that kind, she did not answer at all; that she was in a condition of stupor,
induced, as he believed, by the stage of uraemia from which she was suffering.
Anselmo Zacarias, who had signed the will of August 11, 1909, was also called as a witnesses during the rehearing. He
testified that he had known Tomasa Elizaga Yap Caong since he was a child; that Tomasa was dead; that he had written
the will exhibit A; that it was all in his writing except the last part, which was written by Carlos Sobaco; that he had written
the will Exhibit A at the request of the uncle of Tomasa; that Lorenzo, the brother of the deceased, was the one who had
instructed him as to the terms of the will ; that the deceased had not spoken to him concerning the terms of the will; that
the will was written in the dining room of the residence of the deceased; that Tomasa was in another room different from
that in which the will was written; that the will was not written in the presence of Tomasa; that he signed the will as a
witness in the room where Tomasa was lying; that the other witnesses signed the will in the same room that when he went

into the room where the sick woman was (Tomasa Elizaga Yap Caong) Lorenzo had the will in his hands; that when
Lorenzo came to the bed he showed the will to his sister (Tomasa) and requested her to sign it; that she was lying
stretched out on the bed and two women, who were taking care of her, helped her to sit up, supporting her by lacing their
hands at her back; that when she started to write her name, he withdrew from the bed on account of the best inside the
room; when he came back again to the sick bed the will was signed and was again in the hands of Lorenzo; that he did
not see Tomasa sign the will because he withdrew from the room; that he did not know whether Tomasa had been
informed of the contents of the will or not; he supposed she must have read it because Lorenzo turned the will over to her;
that when Lorenzo asked her to sign the will, he did not know what she said he could not hear her voice; that he did not
know whether the sick woman was him sign the will or not; that he believed that Tomasa died the next day after the will
had been signed; that the other two witnesses, Timoteo Paez and Severo Tabora, had signed the will in the room with the
sick woman; that he saw them sign the will and that they saw him sign it; that he was not sure whether the testatrix could
have seen them at the time they signed the will or not; that there was a screen before the bed; that he did not think that
Lorenzo had been giving instructions as to the contents of the will; that about ten or fifteen minutes elapsed from the time
Lorenzo handed the will to Tomasa before she started to sign it; that the pen with which she signed the will as given to her
and she held it.
Clotilde Mariano testified that he was a cigarette maker; that he knew Tomasa Elizaga Yap Caong and that she was dead;
that she had made two wills; that the first one was written by La O and the second by Zacarias; that he was present at the
time Zacarias wrote the second one; that he was present when the second will was taken to Tomasa for signature; that
Lorenzo had told Tomasa that the second will was exactly like the first; that Tomasa said she could not sign it.
On cross examination he testified that there was a lot of visitors there; that Zacarias was not there; that Paez and Tabora
were there; that he had told Tomasa that the second will was exactly like the first.
During the rehearing Cornelia Serrano and Pedro Francisco were also examined as witnesses. There is nothing in their
testimony, however, which in our opinion is important.
In rebuttal Julia e la Cruz was called as a witness. She testified that she was 19 years of age; that she knew Tomasa
Elizaga Yap Caong during her lifetime; that she lived in the house of Tomasa during the last week of her illness; that
Tomasa had made two wills; that she was present when the second one was executed; that a lawyer had drawn the will in
the dining room and after it had been drawn and everything finished , it was taken to where Doa Tomasa was, for her
signature; that it was taken to her by Anselmo Zacarias; that she was present at the time Tomasa signed the will that there
were many other people present also; that she did not see Timoteo Paez there; that she saw Severo Tabora; that Anselmo
Zacarias was present; that she did not hear Clotilde Mariano ask Tomasa to sign the will; that she did not hear Lorenzo
say to Tomasa that the second will was the same sa the first; that Tomasa asked her to help her to sit up and to put a
pillow to her back when Zacarias gave her some paper or document and asked her to sign it; that she saw Tomasa take
hold of the pen and try to sign it but she did not see the place she signed the document, for the reason that she left the
room; that she saw Tomasa sign the document but did not see on what place on the document she signed; and that a
notary public came the next morning; that Tomasa was able to move about in the bed; that she had seen Tomasa in the
act of starting to write her signature when she told her to get her some water.
Yap Cao Quiang was also called as a witness in rebuttal. He testified that he knew Tomasa Elizaga Yap Caong and knew
that she had made a will; that he saw the will at the time it was written; that he saw Tomasa sign it on her head; that he did
not hear Lorenzo ask Tomasa to sign the will; that Lorenzo had handed the will to Tomasa to sign; that he saw the
witnesses sign the will on a table near the bed; that the table was outside the curtain or screen and near the entrance to
the room where Tomasa was lying.
Lorenzo Yap Caong testified as a witness on rebuttal. He said that he knew Anselmo Zacarias and that Zacarias wrote the
will of Tomasa Elizaga Yap Caong; that Tomasa had given him instructions; that Tomasa had said that she sign the will;
that the will was on a table near the bed of Tomasa; that Tomasa, from where she was lying in the bed, could seethe table
where the witnesses had signed the will.
During the rehearing certain other witnesses were also examined; in our opinion, however, it is necessary to quote from
them for the reason that their testimony in no way affects the preponderance of proof above quoted.
At the close of the rehearing the Honorable A. S. Crossfield, judge, in an extended opinion, reached the conclusion that
the last will and testament of Tomasa Elizaga Yap Caong, which was attached to the record and marked Exhibit A was the

last will and testament of the said Tomasa Elizaga Yap Caong and admitted it to probate and ordered that the
administrator therefore appointed should continue as such administrator. From that order the protestants appealed to this
court, and made the following assignments of error:
I. The court erred in declaring that the will, Exhibit A, was executed by the deceased Tomasa Yap Caong, without
the intervention of any external influence on the part of other persons.
II. The court erred in declaring that the testator had clear knowledge and knew what she was doing at the time of
signing the will.
III. The court erred in declaring that the signature of the deceased Tomasa Yap Caong in the first will, Exhibit 1, is
identical with that which appears in the second will, Exhibit A.
IV. The court erred in declaring that the will, Exhibit A, was executed in accordance with the law.
With reference to the first assignment of error, to wit, that undue influence was brought to bear upon Tomasa Elizaga Yap
Caong in the execution of her will of August 11th, 1909 (Exhibit A), the lower court found that no undue influence had been
exercised over the mind of the said Tomasa Elizaga Yap Caong. While it is true that some of the witnesses testified that
the brother of Tomasa, one Lorenzo, had attempted to unduly influence her mind in the execution of he will, upon the other
hand, there were several witnesses who testified that Lorenzo did not attempt, at the time of the execution of the will, to
influence her mind in any way. The lower court having had an opportunity to see, to hear, and to note the witnesses during
their examination reached the conclusion that a preponderance of the evidence showed that no undue influence had been
used. we find no good reason in the record for reversing his conclusions upon that question.
With reference to the second assignment of error to wit, that Tomasa Elizaga Yap Caong was not of sound mind and
memory at the time of the execution of the will, we find the same conflict in the declarations of the witnesses which we
found with reference to the undue influence. While the testimony of Dr. Papa is very strong relating to the mental condition
of Tomasa Elizaga Yap Caong, yet, nevertheless, his testimony related to a time perhaps twenty-four hours before the
execution of the will in question (Exhibit A). Several witnesses testified that at the time the will was presented to her for her
signature, she was of sound mind and memory and asked for a pen and ink and kept the will in her possession for ten or
fifteen minutes and finally signed it. The lower court found that there was a preponderance of evidence sustaining the
conclusion that Tomasa Elizaga Yap Caong was of sound mind and memory and in the possession of her faculties at the
time she signed this will. In view of the conflict in the testimony of the witnesses and the finding of the lower court, we do
not feel justified in reversing his conclusions upon that question.
With reference to the third assignment of error, to wit, that the lower court committed an error in declaring that the
signature of Tomasa Elizaga Yap Caong, on her first will (August 6, 1909, Exhibit 1), is identical with that which appears in
the second will (August 11, 1909, Exhibit A), it may be said:
First. That whether or not Tomasa Elizaga Yap Caong executed the will of August 6, 1909 (Exhibit 1), was not the question
presented to the court. The question presented was whether or not she had duly executed the will of August 11, 1909
(Exhibit A).
Second. There appears to be but little doubt that Tomasa Elizaga Yap Caong did execute the will of August 6, 1909.
Several witnesses testified to that fact. The mere fact, however, that she executed a former will is no proof that she did not
execute a later will. She had a perfect right, by will, to dispose of her property, in accordance with the provisions of law, up
to the very last of moment her life. She had a perfect right to change, alter, modify or revoke any and all of her former wills
and to make a new one. Neither will the fact that the new will fails to expressly revoke all former wills, in any way sustain
the charge that she did not make the new will.
Third. In said third assignment of error there is involved in the statement that "The signature of Tomasa Elizaga Yap
Caong, in her first will (Exhibit 1) was not identical with that which appears in her second will (Exhibit A)" the inference that
she had not signed the second will and all the argument of the appellants relating to said third assignment of error is
based upon the alleged fact that Tomasa Elizaga Yap Caong did not sign Exhibit A. Several witnesses testified that they
saw her write the name "Tomasa." One of the witnesses testified that she had written her full name. We are of the opinion,
and we think the law sustains our conclusion, that if Tomasa Elizaga Yap Caong signed any portion of her name tot he

will, with the intention to sign the same, that the will amount to a signature. It has been held time and time again that one
who makes a will may sign the same by using a mark, the name having been written by others. If writing a mark simply
upon a will is sufficient indication of the intention of the person to make and execute a will, then certainly the writing of a
portion or all of her name ought to be accepted as a clear indication of her intention to execute the will. (Re Goods of
Savory, 15 Jur., 1042; Addy vs. Grix, 8 Ves. Jr., 504; Baker vs. Dening, 8 Ad. and El., 94 Long vs. Zook, 13 Penn., 400;
Vernon vs. Kirk, 30 Penn., 218; Cozzen's Will, 61 Penn., 196; Re Goods of Emerson, L. R. 9 Ir., 443; Main vs. Ryder, 84
Penn., 217.)
We find a very interesting case reported in 131 Pennsylvania State, 220 (6 L. R. A., 353), and cited by the appellees,
which was known as "Knox's Appeal." In this case one Harriett S. Knox died very suddenly on the 17th of October, 1888,
at the residence of her father. After her death a paper was found in her room, wholly in her handwriting, written with a lead
pencil, upon three sides of an ordinary folded sheet of note paper and bearing the signature simply of "Harriett." In this
paper the deceased attempted to make certain disposition of her property. The will was presented for probate. The
probation was opposed upon the ground that the same did not contain the signature of the deceased. That was the only
question presented to the court, whether the signature, in the form above indicated, was a sufficient signature to constitute
said paper the last will and testament of Harriett S. Knox. It was admitted that the entire paper was in the handwriting of
the deceased. In deciding that question, Justice Mitchell said:
The precise case of a signature by the first name only, does not appear to have arisen either in England or the
United States; but the principle on which the decisions already referred to were based, especially those in regard
to signing by initials only, are equally applicable to the present case, and additional force is given to them by the
decisions as to what constitutes a binding signature to a contract. (Palmer vs. Stephens, 1 Denio, 478; Sanborne
vs. Flager, 9 Alle, 474; Weston vs. Myers, 33 Ill., 424; Salmon Falls, etc. Co. vs. Goddard, 14 How. (U. S.), 446.)
The man who cannot write and who is obliged to make his mark simply therefor, upon the will, is held to "sign" as
effectually as if he had written his initials or his full name. It would seem to be sufficient, under the law requiring a
signature by the person making a will, to make his mark, to place his initials or all or any part of his name thereon. In the
present case we think the proof shows, by a large preponderance, that Tomasa Elizaga Yap Caong, if she did not sign her
full name, did at least sign her given name "Tomasa," and that is sufficient to satisfy the statute.
With reference to the fourth assignment of error, it may be said that the argument which was preceded is sufficient to
answer it also.
During the trial of the cause the protestants made a strong effort to show that Tomasa Elizaga Yap Caong did not sign her
name in the presence of the witnesses and that they did not sign their names in their presence nor in the presence of
each other. Upon that question there is considerable conflict of proof. An effort was made to show that the will was signed
by the witnesses in one room and by Tomasa in another. A plan of the room or rooms in which the will was signed was
presented as proof and it was shown that there was but one room; that one part of the room was one or two steps below
the floor of the other; that the table on which the witnesses signed the will was located upon the lower floor of the room. It
was also shown that from the bed in which Tomasa was lying, it was possible for her to see the table on which the
witnesses signed the will. While the rule is absolute that one who makes a will must sign the same in the presence of the
witnesses and that the witnesses must sign in the presence of each other, as well as in the presence of the one making
the will, yet, nevertheless, the actual seeing of the signatures made is not necessary. It is sufficient if the signatures are
made where it is possible for each of the necessary parties, if they desire to see, may see the signatures placed upon the
will.
In cases like the present where there is so much conflict in the proof, it is very difficult for the courts to reach conclusions
that are absolutely free from doubt. Great weight must be given by appellate courts who do not see or hear the witnesses,
to the conclusions of the trial courts who had that opportunity.
Upon a full consideration of the record, we find that a preponderance of the proof shows that Tomasa Elizaga Yap Caong
did execute, freely and voluntarily, while she was in the right use of all her faculties, the will dated August 11, 1909 (Exhibit
A). Therefore the judgment of the lower court admitting said will to probate is hereby affirmed with costs.
2. G.R. No. L-5971

February 27, 1911

BEATRIZ NERA, ET AL., plaintiffs-appellees,

vs.
NARCISA RIMANDO, defendant-appellant.
Valerio Fontanilla and Andres Asprer for appellant.
Anacleto Diaz for appellees.
CARSON, J.:
The only question raised by the evidence in this case as to the due execution of the instrument propounded as a will in the
court below, is whether one of the subscribing witnesses was present in the small room where it was executed at the time
when the testator and the other subscribing witnesses attached their signatures; or whether at that time he was outside,
some eight or ten feet away, in a large room connecting with the smaller room by a doorway, across which was hung a
curtain which made it impossible for one in the outside room to see the testator and the other subscribing witnesses in the
act of attaching their signatures to the instrument.
A majority of the members of the court is of opinion that this subscribing witness was in the small room with the testator
and the other subscribing witnesses at the time when they attached their signatures to the instrument, and this finding, of
course, disposes of the appeal and necessitates the affirmance of the decree admitting the document to probate as the
last will and testament of the deceased.
The trial judge does not appear to have considered the determination of this question of fact of vital importance in the
determination of this case, as he was of opinion that under the doctrine laid down in the case of Jaboneta vs. Gustilo (5
Phil. Rep., 541) the alleged fact that one of the subscribing witnesses was in the outer room when the testator and the
other describing witnesses signed the instrument in the inner room, had it been proven, would not be sufficient in itself to
invalidate the execution of the will. But we are unanimously of opinion that had this subscribing witness been proven to
have been in the outer room at the time when the testator and the other subscribing witnesses attached their signatures to
the instrument in the inner room, it would have been invalid as a will, the attaching of those signatures under
circumstances not being done "in the presence" of the witness in the outer room. This because the line of vision from this
witness to the testator and the other subscribing witnesses would necessarily have been impeded by the curtain
separating the inner from the outer one "at the moment of inscription of each signature."
In the case just cited, on which the trial court relied, we held that:
The true test of presence of the testator and the witnesses in the execution of a will is not whether they actually
saw each other sign, but whether they might have been seen each other sign, had they chosen to do so,
considering their mental and physical condition and position with relation to each other at the moment of
inscription of each signature.
But it is especially to be noted that the position of the parties with relation to each other at the moment of the subscription
of each signature, must be such that they may see each other sign if they choose to do so. This, of course, does not mean
that the testator and the subscribing witnesses may be held to have executed the instrument in the presence of each
other if it appears that they would not have been able to see each other sign at that moment, without changing their
relative positions or existing conditions. The evidence in the case relied upon by the trial judge discloses that "at the
moment when the witness Javellana signed the document he was actually and physically present and in such position
with relation to Jaboneta that he could see everything that took place by merely casting his eyes in the proper direction
and without any physical obstruction to prevent his doing so." And the decision merely laid down the doctrine that the
question whether the testator and the subscribing witnesses to an alleged will sign the instrument in the presence of each
other does not depend upon proof of the fact that their eyes were actually cast upon the paper at the moment of its
subscription by each of them, but that at that moment existing conditions and their position with relation to each other
were such that by merely casting the eyes in the proper direction they could have seen each other sign. To extend the
doctrine further would open the door to the possibility of all manner of fraud, substitution, and the like, and would defeat
the purpose for which this particular condition is prescribed in the code as one of the requisites in the execution of a will.
The decree entered by the court below admitting the instrument propounded therein to probate as the last will and
testament of Pedro Rimando, deceased, is affirmed with costs of this instance against the appellant.

3. G.R. No. 1641

January 19, 1906

GERMAN JABONETA, plaintiff-appellant,

vs.
RICARDO GUSTILO, ET AL., defendants-appellees.
Ledesma, Sumulong and Quintos for appellant.
Del-Pan, Ortigas and Fisher for appellees.
CARSON, J.:
In these proceedings probate was denied the last will and testament of Macario Jaboneta, deceased, because the lower
court was of the opinion from the evidence adduced at the hearing that Julio Javellana, one of the witnesses, did not
attach his signature thereto in the presence of Isabelo Jena, another of the witnesses, as required by the provisions of
section 618 of the Code of Civil Procedure.
The following is a copy of the evidence which appears of record on this particular point, being a part of the testimony of
the said Isabeo Jena:
Q.

1641

Who first signed the will?

A.

1641

I signed it first, and afterwards Aniceto and the others.

Q.

1641

Who were those others to whom you have just referred?

A.
1641 After the witness Aniceto signed the will I left the house, because I was in a hurry, and at the
moment when I was leaving I saw Julio Javellana with the pen in his hand in position ready to sign (en actitud de
firmar). I believe he signed, because he was at the table. . . .
Q.

1641

State positively whether Julio Javellana did or did not sign as a witness to the will.

A.
1641 I can't say certainly, because as I was leaving the house I saw Julio Javellana with the pen in his
hand, in position ready to sign. I believe he signed.
Q.

1641

Why do you believe Julio Javellana signed?

A.
1641
him sign.

Because he had the pen in his hand, which was resting on the paper, though I did not actually see

Q.

Explain this contradictory statement.

1641

A.
1641 After I signed I asked permission to leave, because I was in a hurry, and while I was leaving Julio
had already taken the pen in his hand, as it appeared, for the purpose of signing, and when I was near the door I
happened to turn my face and I saw that he had his hand with the pen resting on the will, moving it as if for the
purpose of signing.
Q.
1641 State positively whether Julio moved his hand with the pen as if for the purpose of signing, or
whether he was signing
A.

I believe he was signing.

The truth and accuracy of the testimony of this witness does not seem to have been questioned by any of the parties to
the proceedings, but the court, nevertheless, found the following facts:

On the 26th day of December, 1901, Macario Jaboneta executed under the following circumstances the document
in question, which has been presented for probate as his will:
Being in the house of Arcadio Jarandilla, in Jaro, in this province, he ordered that the document in question be
written, and calling Julio Javellana, Aniceto Jalbuena, and Isabelo Jena as witnesses, executed the said
document as his will. They were all together, and were in the room where Jaboneta was, and were present when
he signed the document, Isabelo Jena signing afterwards as a witness, at his request, and in his presence and in
the presence of the other two witnesses. Aniceto Jalbuena then signed as a witness in the presence of the
testator, and in the presence of the other two persons who signed as witnesses. At that moment Isabelo Jena,
being in a hurry to leave, took his hat and left the room. As he was leaving the house Julio Javellana took the pen
in his hand and put himself in position to sign the will as a witness, but did not sign in the presence of Isabelo
Jena; but nevertheless, after Jena had left the room the said Julio Javellana signed as a witness in the presence
of the testator and of the witness Aniceto Jalbuena.
We can not agree with so much of the above finding of facts as holds that the signature of Javellana was not signed in the
presence of Jena, in compliance with the provisions of section 618 of the Code of Civil Procedure. The fact that Jena was
still in the room when he saw Javellana moving his hand and pen in the act of affixing his signature to the will, taken
together with the testimony of the remaining witnesses which shows that Javellana did in fact there and then sign his
name to the will, convinces us that the signature was affixed in the presence of Jena. The fact that he was in the act of
leaving, and that his back was turned while a portion of the name of the witness was being written, is of no importance.
He, with the other witnesses and the testator, had assembled for the purpose of executing the testament, and were
together in the same room for that purpose, and at the moment when the witness Javellana signed the document he was
actually and physically present and in such position with relation to Javellana that he could see everything which took
place by merely casting his eyes in the proper direction, and without any physical obstruction to prevent his doing so,
therefore we are of opinion that the document was in fact signed before he finally left the room.
The purpose of a statutory requirement that the witness sign in the presence of the testator is said to be that the
testator may have ocular evidence of the identity of the instrument subscribed by the witness and himself, and the
generally accepted tests of presence are vision and mental apprehension. (See Am. & Eng. Enc. of Law, vol. 30,
p. 599, and cases there cited.)
In the matter of Bedell (2 Connoly (N.Y.), 328) it was held that it is sufficient if the witnesses are together for the purpose
of witnessing the execution of the will, and in a position to actually see the testator write, if they choose to do so; and there
are many cases which lay down the rule that the true test of vision is not whether the testator actually saw the witness
sign, but whether he might have seen him sign, considering his mental and physical condition and position at the time of
the subscription. (Spoonemore vs. Cables, 66 Mo., 579.)
The principles on which these cases rest and the tests of presence as between the testator and the witnesses are equally
applicable in determining whether the witnesses signed the instrument in the presence of each other, as required by the
statute, and applying them to the facts proven in these proceedings we are of opinion that the statutory requisites as to
the execution of the instrument were complied with, and that the lower court erred in denying probate to the will on the
ground stated in the ruling appealed from.
We are of opinion from the evidence of record that the instrument propounded in these proceedings was satisfactorily
proven to be the last will and testament of Macario Jaboneta, deceased, and that it should therefore be admitted to
probate.
The judgment of the trial court is reversed, without especial condemnation of costs, and after twenty days the record will
be returned to the court form whence it came, where the proper orders will be entered in conformance herewith. So
ordered.
4. C.A. No. 4

March 21, 1946

In the matter of the testate estate of the late Encarnacion Neyra. TRINIDAD NEYRA, petitioner-appellee,
vs.
TEODORA NEYRA, PILAR DE GUZMAN and MARIA JACOBO VDA. DE BLANCO, oppositors-appellants.

TEODORA NEYRA, PILAR DE GUZMAN and MARIA JACOBO VDA. BLANCO, petitioners-appellants,
vs.
TRINIDAD NEYRA and EUSTAQUIO MENDOZA, oppositors-appellees.
Lucio Javillonar for oppositors and appellants.
Alejandro M. Panis for applicants and appellees.
DE JOYA, J.:
This is an appeal from a decree rendered by the Hon. Gervasio Diaz, Judge of the Court of First Instance of the City of
Manila, on December 3, 1943, admitting to probate a will dated November 3, 1942, executed by the deceased
Encarnacion Neyra; at the same time denying the probate of a previous will dated September 14, 1939, alleged to have
been executed by the said testatrix.
Trinidad Neyra, beneficiary in the will executed on November 3, 1942, filed, on November 10, 1942, a petition in the Court
of First Instance of Manila, for the probate of said will.
On December 19, 1942, Teodora Neyra, Pilar de Guzman, and Maria Jacobo Vda. de Blanco, who had not been named
as beneficiaries in said will, filed on opposition to the probate of the said will dated November 3, 1942, alleging (1) that at
the time of the alleged execution of the said will, the testatrix Encarnacion Neyra no longer possessed testamentary
capacity; (2) that her thumb marks on said instrument had been procured by means of fraud by petitioner Trinidad Neyra,
and that Encarnacion Neyra never intended to consider said document as will; (3) that the alleged will, dated November 3,
1942, had not been executed in the manner and form prescribed by law; and(4) that Encarnacion Neyra, since September
14, 1939, had executed a will, naming as beneficiaries said oppositors and others, and that said will had never been
revoked or amended in any manner whatsoever.
On December 26, 1942, petitioner Trinidad Neyra filed a reply denying the allegations in the opposition.
Subsequently, said oppositors filed a counter petition, asking for the probate of the first will executed by Encarnacion
Neyra, on September 14, 1939, marked as Exhibit 16. On March 16, 1943, the legatees Trinidad Neyra and Eustaquio
Mendoza filed their opposition to the probate on said will marked as Exhibit 16, and amended said opposition, on
September 15, 1943, to which Teodora Neyra and the others filed a reply, on September 20, 1943.
On the dates set for the hearing on the petition filed by Trinidad Neyra, and the counter petition mentioned above, said
petitioner as well as the oppositors, presented evidence, testimonial and documentary. The witnesses presented by the
petitioner Trinidad Neyra were Mons. Vicente Fernandez, Rev. Fr. Teodoro Garcia, Sor. Andrea Montejo, Dr. Moises B.
Abad, Dr. Eladio A. Aldecoa, Atty. Ricardo Sikat, petitioner Trinidad Neyra herself, and Atty. Alejandro M. Panis, who had
acted as scrivener in the preparation of said will dated November 3, 1942.
Teodora Neyra and the other oppositors also presented several witnesses, the principal among whom were Presentacion
Blanco, Caferina de la Cruz, Acislo Manuel, Dr. Dionisio Parulan, an alleged medical expert, and the oppositors Teodora
Neyra and Pilar de Guzman themselves.
After considering the evidence, the lower court rendered a decree admitting to probate the will dated November 3, 1942;
at the same time denying the probate of the will dated September 14, 1939.
From said decision Teodora Neyra and the other oppositors appealed to the Court of Appeals for the City of Manila,
assigning several errors, which may be reduced to the following, to wit, that the trial court erred (1) in finding that
Encarnacion Neyra wanted to make a new will; (2) in declaring that there was reconciliation between Encarnacion Neyra
and her sister Trinidad; (3) in accepting as satisfactory the evidence submitted by the petitioner; (4) in ignoring the
evidence submitted by the oppositors; and (5) in not admitting to probate the will dated September 14, 1939.
The evidence, testimonial and documentary, adduced during the trial of the case in the court below, has satisfactorily and
sufficiently established the following facts:

That Severo Neyra died intestate in the City of Manila, on May 6, 1938, leaving certain properties and two children, by his
first marriage, named Encarnacion Neyra and Trinidad Neyra, and several other relatives; that after the death of Severo
Neyra, the two sisters, Encarnacion Neyra and Trinidad Neyra, had serious quarrels, in connection with the properties left
by their deceased father, and so serious were their dissensions that, after March 31, 1939, they had two litigations in the
Court of First Instance of Manila, concerning said properties (Exhibits 8 and 9): In the first case, filed on March 31, 1939,
Trinidad Neyra and others demanded from Encarnacion Neyra et al. the annulment of the sale of the property located at
No. 366 Raon Street, Manila, and it was finally decided in favor of the defendants in the Court of First Instance and in the
Court of Appeals, on December 21, 1943 (G.R. No. 8162, Exhibit 9).
In the second case, filed on October 25, 1939, Trinidad Neyra demanded from Encarnacion Neyra, one-half () of the
property described therein, and one-half () of the rents, and the Court of First Instance decided in favor of the plaintiff,
but at the same time awarded in favor of the defendant P727.77, under her counterclaim; and Trinidad Neyra again
elevated the case to the Court of Appeals for Manila (G.R. No. 8075) Exhibit 8, which was decided, pursuant to the
document of compromise marked as Exhibit D; and the petition for reconsideration filed therein still remains undecided.
That Encarnacion Neyra, who had remained single, and who had no longer any ascendants, executed a will on
September 14, 1939, marked Exhibit 16, disposing of her properties in favor of the "Congregacion de Religiosas de la
Virgen Maria" and her other relatives named Teodora Neyra, Pilar de Guzman and Maria Jacobo Vda. de Blanco, making
no provision whatsoever in said will in favor of her only sister Trinidad Neyra, who had become her bitter enemy; that
when the said will was brought to the attention of the authorities of said Congregation, after due deliberation and
consideration, said religious organization declined the bounty offered by Encarnacion Neyra, and said decision of the
Congregation was duly communicated to her; that in order to overcome the difficulties encountered by said religious
organization in not accepting the generosity of Encarnacion Neyra, the latter decided to make a new will, and for that
purpose, about one week before her death, sent for one Ricardo Sikat, an attorney working in the Law Offices of Messrs.
Feria and LaO, and gave him instructions for the preparation of a new will; that Attorney Sikat, instead of preparing a new
will, in accordance with the express instructions given by Encarnacion Neyra, merely prepared a draft in the form of a
codicil, marked as Exhibit M, amending said will, dated September 14, 1939, again naming said religious organization,
among others, as beneficiary, and said draft of a codicil was also forwarded to the authorities of the said religious
organization, for their consideration and acceptance.
In the meanwhile, Encarnacion Neyra had become seriously ill, suffering from Addison's disease, and on October 31,
1942, she sent for her religious adviser and confessor, Mons. Vicente Fernandez of the Quiapo Church to make
confession, after which she expressed her desire to have a mass celebrated in her house at No. 366 Raon Street, City of
Manila, so that she might take holy communion, in view of her condition; that following the request of Encarnacion Neyra,
Mons. Fernandez caused the necessary arrangements to be made for the celebration of holy mass in the house of
Encarnacion Neyra, and, as a matter of fact, on November 1, 1942, holy mass was solemnized in her house, Fr. Teodoro
Garcia, also of the Quiapo Church, officiating in said ceremony, on which occasion, Encarnacion Neyra, who remained in
bed, took holy communion; that after said religious ceremony had been terminated, Father Garcia talked to Encarnacion
Neyra and advised reconciliation between the two sisters, Encarnacion Neyra and Trinidad Neyra. Encarnacion Neyra
accepted said advice and at about noon of the same day (November 1, 1942), sent Eustaquio Mendoza to fetch her sister
Trinidad Neyra, who came at about 2:30 that same afternoon; that on seeing one another, the two greeted each other in a
most affectionate manner, and became reconciled; that the two had a long and cordial conversation, in the course of
which the two sisters also talked about the properties left by their deceased father and their litigations which had reached
the Court of Appeals for the City of Manila, and they agreed to have the said appeal dismissed, on the condition that the
property involved therein, consisting of a small house and lot, should be given exclusively to Trinidad Neyra, on the
condition that the latter should waive her claim for her share in the rents of said property, while under the administration of
Encarnacion Neyra, and that the two should renounce their mutual claims against one another. It was also agreed
between the two sisters to send for Atty. Alejandro M. Panis, to prepare the necessary document embodying the said
agreement, but Attorney Panis could come only in the afternoon of the following day, November 2, 1942, when
Encarnacion gave him instructions for the preparation of the document embodying their agreement, and other instructions
relative to the disposition she wanted to make of her properties in her last will and testament; that Attorney Panis prepared
said document of compromise or agreement marked as Exhibit D, as well as the new will and testament marked as
Exhibit C, naming Trinidad Neyra and Eustaquio Mendoza beneficiaries therein, pursuant to the express instructions given
by Encarnacion Neyra, and said instruments were ready for signature on November 3, 1942; that in the afternoon of that
day, November 3, 1942; Attorney Panis read said will and testament marked as Exhibit D to Encarnacion Neyra slowly
and in a loud voice, in the presence of Fr. Teodoro Garcia, Dr. Moises B. Abad, Dr. Eladio Aldecoa, herein petitioner
Trinidad Neyra, and others, after which he asked her if its terms were in accordance with her wishes, if she had anything

else to add, or anything to be changed in said will; and as Encarnacion Neyra stated that the terms of said will were in
accordance with her wishes and express instructions, she asked for the pad and the will Exhibit C and, with the help of a
son of herein petitioner, placed her thumb mark at the foot of said will, in the presence of the three attesting witnesses, Dr.
Moises B. Abad, Dr. Eladio R. Aldecoa, and Atty. Alejandro M. Panis, after which the attesting witnesses signed at the foot
of the document, in the presence of the testatrix Encarnacion Neyra, and of each and everyone of the other attesting
witnesses. Fr. Teodoro Garcia and petitioner Trinidad Neyra and several others were also present.
On November 4, 1942, the testatrix Encarnacion Neyra, due to a heart attack, unexpectedly died.
Although the "Congregacion de Religiosas de la Virgen Maria" had again decided not to accept the provision made in its
favor by the testatrix Encarnacion Neyra in the proposed codicil prepared by Atty. Ricardo Sikat, said decision could not
be communicated to the testatrix, before her death.
Mons. Vicente Fernandez and Fr. Teodoro Garcia testified as to the request made on October 31, 1942, by Encarnacion
Neyra for the celebration of holy mass in her house, on November 1, 1942; that said mass was in fact solemnized in her
house, on that date, in the course of which the testatrix Encarnacion Neyra took holy communion; that on the same day,
after the mass, Encarnacion held a long conversation with Father Garcia, in the course of which, said priest advised her to
have reconciliation with her sister Trinidad; and that said advise was accepted by Encarnacion.
But the testimony of Trinidad Neyra, it has been shown that Encarnacion sent Eustaquio Mendoza to fetch her, and that in
fact she came to the house of Encarnacion, at about 2:30 o'clock in the afternoon that same day, November 1, 1942, with
said Eustaquio Mendoza; that on seeing one another, Encarnacion and Trinidad Neyra greeted each other most
affectionately, forgiving one another, after which they talked about the property left by their deceased father and the
litigation pending between them; and the two sisters agreed to settle their case, which had been elevated to the Court of
Appeals for the City of Manila, concerning a certain house and lot, on the understanding that said property should be
given exclusively to Trinidad, and that the latter should renounce her claim against Encarnacion, for her share in the rents
collected on said property, and, at the same time, Encarnacion renounced her claim for P727.77 against Trinidad; and that
it was also agreed between the two sisters that Atty. Alejandro M. Panis should be called to prepare the necessary papers
for the settlement of said case. Presentacion Blanco, a witness for the oppositors, also testified substantially to the
foregoing facts.
By the testimony of Trinidad Neyra and Atty. Alejandro M. Panis, and the other attesting witnesses, it has also been shown
that Atty. Alejandro M. Panis came in the afternoon of the following day, November 2, 1942, and received instructions from
Encarnacion Neyra, not only for the preparation of said agreement, but also for the preparation of a new will, and
consequently Attorney Panis prepared said document of compromise and the will, dated November 3, 1942, which were
both thumb marked, in duplicate, in the afternoon of that day, by Encarnacion Neyra, who was then of sound mind, as
shown by her appearance and conversation, aided by a son of Trinidad Neyra, on her bed in the sala, in the presence of
the attesting witnesses, Dr. Moises B. Abad, Dr. Eladio R. Aldecoa, and Atty. Alejandro M. Panis, who signed in the
presence of the testatrix and of each other.
Father Teodoro Garcia was also present at the signing of the will, at the request of Encarnacion Neyra, and so was
Trinidad Neyra.
On November 4, 1942, due to a heart attack as a consequence of Addison's disease, perhaps, Encarnacion Neyra
expired, at about 3 o'clock in the morning.
Oppositor Teodora Neyra, her young daughter Ceferina de la Cruz, and Presentacion Blanco, daughter of oppositor Maria
Jacobo Vda. de Blanco, practically corroborated the testimony of the witnesses of the petitioner, with reference to the
signing of documents, in the bedroom of Encarnacion Neyra, on November 3, 1942.
Teodora Neyra, Presentacion Blanco and Ceferina de la Cruz, witnesses for the oppositors, testified, however, that when
the thumb mark of Encarnacion Neyra was affixed, as stated above, to the document of compromise in question, dated
November 3, 1942, she was sleeping on her bed in the sala; and that the attesting witnesses were not present, as they
were in the caida.

But Ceferina de la Cruz, witness for the oppositors, also stated that the attesting witnesses signed the documents thumb
marked by Encarnacion Neyra, in the sala near her bed, thus contradicting herself and Teodora Neyra and Presentacion
Blanco.
Strange to say, Teodora Neyra, Presentacion Blanco and Ceferina de la Cruz also testified that Encarnacion Neyra's
thumb mark was affixed to the will, only in the morning of November 4, 1942, by Trinidad Neyra and Ildefonso del Barrio,
when Encarnacion was already dead.
The testimony of Dr. Dionisio Parulan, alleged medical expert, as to the nature and effects of Addison's disease, is
absolutely unreliable. He had never seen or talked to the testatrix Encarnacion Neyra.
According to the medical authorities, the cause or causes of the sleeping sickness, known as Addison's disease, are not
yet fully known: that persons attacked by said decease often live as long as ten (10) years after the first attack, while
others die after a few weeks only, and that as the disease, progresses, asthenia sets in, and from 80 per cent to 90 per
cent of the patients develop tuberculosis, and complications of the heart also appear. (Cecil, Textbook of Medicine, 3d ed.,
1935, pp. 1250, 1252, 1253; MaCrae, Osler's Modern Medicine, 3d ed., Vol. V. pp. 272-279).
And it has been conclusively shown in this case that the testatrix Encarnacion Neyra, at the age of 48, died on November
4, 1942, due to a heart attack, after an illness of about two (2) years.
In connection with testamentary capacity, in several cases, this court has considered the testimony of witnesses, who had
known and talked to the testators, more trustworthy than the testimony of alleged medical experts.
Testamentary capacity is the capacity to comprehend the nature of the transaction in which the testator is engaged at the
time, to recollect the property to be disposed of, and the persons who would naturally be supposed to have claims upon
the testator, and to comprehend the manner in which the instrument will distribute his property among the objects of his
bounty. (Bugnao vs. Ubag. 14 Phil., 163.)
Insomnia, in spite of the testimony of two doctors who testified for the opponents to the probate of a will, who stated that it
tended to destroy mental capacity, was held not to affect the full possession of the mental faculties deemed necessary
and sufficient for its execution. (Caguioa vs. Calderon, 20 Phil., 400.) The testatrix was held to have been compos mentis,
in spite of the physician's testimony to the contrary, to the effect that she was very weak, being in the third or last stage of
tuberculosis. (Yap Tua vs. Yap Ca Kuan and Yap Ca Llu, 27 Phil., 579.) The testimony testimony of the attending
physician that the deceased was suffering from diabetes and had been in a comatose for several days, prior to his death,
was held not sufficient to establish testamentary incapacity, in view of the positive statement of several credible witnesses
that he was conscious and able to understand what said to him and to communicate his desires. (Samson vs. Corrales
Tan Quintin, 44 Phil., 573.) Where the mind of the testator is in perfectly sound condition, neither old age, nor ill health,
nor the fact that somebody had to guide his hand in order that he might sign, is sufficient to invalidate his will. (Amata and
Almojuela vs. Tablizo, 48 Phil., 485.)
Where it appears that a few hours and also a few days after the execution of the will, the testator intelligently and
intelligibly conversed with other persons, although lying down and unable to move or stand up unassisted, but could still
effect the sale of property belonging to him, these circumstances show that the testator was in a perfectly sound mental
condition at the time of executing the will. (Amata and Almojuela vs. Tablizo, 48 Phil., 485.)
Presentacion Blanco, in the course of her cross-examination, frankly admitted that, in the morning and also at about 6
o'clock in the afternoon of November 3, 1942, Encarnacion Neyra talked to her and that they understood each other
clearly, thus showing that the testatrix was really of sound mind, at the time of the signing and execution of the agreement
and will in question.
It may, therefore, be reasonably concluded that the mental faculties of persons suffering from Addison's disease, like the
testatrix in this case, remain unimpaired, partly due to the fact that, on account of the sleep they enjoy, they necessarily
receive the benefit of physical and mental rest. And that like patients suffering from tuberculosis, insomnia or diabetes,
they preserve their mental faculties until the moments of their death.

Judging by the authorities above cited, the conclusion made the trial court that the testatrix Encarnacion Neyra was of
sound mind and possessed testamentary capacity, at the time of the execution of the will, cannot be properly disturbed.
The oppositors also claim that the attesting witnesses were not present, at the time that the testatrix thumbed marked the
will in question, on her bed, in the sala of the house, as they were allegedly in the caida. But it has been fully shown that
the attesting witnesses were present at the time of the signing and execution of the agreement and will in question, in
the sala, where the testatrix was lying on her bed. The true test is not whether they actually saw each other, at the time of
the signing of the will, but whether they might have seen each other sign, had they chosen to do so; and the attesting
witnesses actually saw it in this case. (Jaboneta vs. Gustilo, 5 Phil., 541.) And the thumbmark placed by the testatrix on
the will is equivalent to her signature. (Yap Tua vs. Yap Ca Kuan and Yap Ca Llu, 27 Phil., 579.)
The oppositors as well as their principal witnesses are all interested parties, as said oppositors had been named legatees
in the will dated September 14, 1939, but eliminated from the will dated November 3, 1942.
On the other hand, the witnesses for the petitioner are all trustworthy men, who had absolutely no interest in the final
outcome of this case. Two of them are ministers of the Gospel, while the three attesting witnesses are professional men of
irreproachable character, who had known and seen and talked to the testatrix.
Furthermore, the testimony of the oppositors and their witnesses, to the effect that there could have been no reconciliation
between the two sisters, and that the thumb mark of Encarnacion Neyra was affixed to the document embodying the
agreement, while she was sleeping, on November 3, 1942, in their presence; and that her thumb mark was affixed to the
will in question, when she was already dead, in the morning of November 4, 1942, within their view is preposterous, to say
the least. Said testimony is contrary to common sense. It violates all sense of proportion. The oppositors and their
witnesses could not have told the truth; they have testified to brazen falsehoods; and they are, therefore, absolutely
unworthy of belief. And to the evidence of the oppositors is completely applicable the rule falsus in uno, falsus in omnibus.
(Gonzales vs. Mauricio, 53 Phil., 728, 735.)
In the brief presented by counsel for the oppositors and the appellants, to show the alleged improbability of the
reconciliation of the two sisters and the execution of the will, dated November 3, 1942, they have erroneously placed great
reliance on the facts that, up to October 31, 1942, the two sisters Encarnacion and Trinidad Neyra were bitter enemies.
They were banking evidently on the common belief that the hatred of relatives is the most violent. Dreadful indeed are the
feuds of relatives, and difficult the reconciliation. But they had forgotten the fact that Encarnacion Neyra was a religious
and pious woman instructed in the ancient virtues of Christian faith and hope and charity, and that it was godly to forgive
and better still to forget.
It was most natural that there should have been reconciliation between the two sisters, Encarnacion and Trinidad Neyra,
as the latter is the nearest relative of the former, her only sister of the whole blood. The approach of imminent death must
have evoked in her the tenderest recollections of childhood. And believing perhaps that her little triumphs had not always
been fair to her sister who in fact, had had successively instituted two suits against her, to recover what was her due, and
for which Encarnacion believed she must atone, she finally decided upon reconciliation, so that she might depart in peace.
The record shows that, of the two, Encarnacion lived in greater opulence, and that Trinidad had been demanding
tenaciously her share; and as a Christian woman, Encarnacion must have known that no one has any right to enrich
himself unjustly, at the expense of another. And it was, therefore, natural that Encarnacion should desire reconciliation
with her sister Trinidad, and provide for her in her last will and testament.
As for Eustaquio Mendoza, who, according to the evidence, had served Encarnacion Neyra for so many years and so
well, it was also natural that she should make some provision for him, as gratitude is the noblest sentiment that springs
from the human heart.
The conduct of Encarnacion Neyra, in making altogether a new will, with new beneficiaries named therein, including
principally her bitterest enemy of late, which is completely incompatible with the will, dated September 14, 1939, may
really seem strange and unusual; but, as it has been truly said, above the logic of the head is the feeling in the heart, and
the heart has reasons of its own which the head cannot always understand, as in the case of intuitive knowledge of
eternal verity.

As Encarnacion Neyra felt the advent of immortality, she naturally wanted to follow "the path of the just, which is as the
shining light that shineth more and more unto the perfect day," so that her memory may be blessed. As a Christian
woman, she must have loved justice, mercy and truth and to follow the law, for this is the whole duty of man.
In the present case, the court cannot find any reason or justification to alter the conclusions set forth in the decree
appealed from. This court will not reverse any findings of fact by the trial court made upon conflicting testimony and
depending largely upon the credibility of witnesses, who testified in the presence of the trial judge, unless the court below
failed to take into consideration some material facts or circumstances, or to weigh accurately all of the material facts and
circumstances presented to it for consideration. (Baltazar vs. Alberto, 33 Phil., 336; Melliza vs.Towle, 34 Phil., 345;
Caragay vs. Urquiza, 53 Phil., 72, 79; Garcia vs. Garcia de Bartolome, 63 Phil., 419.)
After a careful consideration of the evidence and the law of this case, we find it legally impossible to sustain any of the
errors assigned by the appellants. The judgment appealed from is, therefore, affirmed, with costs against the appellants.
So ordered.
****Marginal Signatures
G.R. No. L-18979

June 30, 1964

IN THE MATTER OF THE TESTATE ESTATE OF THE LATE JOSEFA VILLACORTE.

CELSO ICASIANO, petitioner-appellee,
vs.
NATIVIDAD ICASIANO and ENRIQUE ICASIANO, oppositors-appellants.
Jose W. Diokno for petitioner-appellee.
Rosendo J. Tansinin for oppositor-appellant Natividad Icasiano.
Jaime R. Nuevas for oppositor-appellant Enrique Icasiano.
REYES, J.B.L., J.:
Appeal from an order of the Court of First Instance of Manila admitting to probate the document and its duplicate, marked
as Exhibits "A" and "A-1", as the true last will and testament of Josefa Villacorte, deceased, and appointing as executor
Celso Icasiano, the person named therein as such.
This special proceeding was begun on October 2, 1958 by a petition for the allowance and admission to probate of the
original, Exhibit "A" as the alleged will of Josefa Villacorte, deceased, and for the appointment of petitioner Celso Icasiano
as executor thereof.
The court set the proving of the alleged will for November 8, 1958, and caused notice thereof to be published for three (3)
successive weeks, previous to the time appointed, in the newspaper "Manila chronicle", and also caused personal service
of copies thereof upon the known heirs.
On October 31, 1958, Natividad Icasiano, a daughter of the testatrix, filed her opposition; and on November 10, 1958, she
petitioned to have herself appointed as a special administrator, to which proponent objected. Hence, on November 18,
1958, the court issued an order appointing the Philippine Trust Company as special administrator.1wph1.t
On February 18, 1959, Enrique Icasiano, a son of the testatrix, also filed a manifestation adopting as his own Natividad's
opposition to the probate of the alleged will.
On March 19, 1959, the petitioner proponent commenced the introduction of his evidence; but on June 1, 1959, he filed a
motion for the admission of an amended and supplemental petition, alleging that the decedent left a will executed in
duplicate with all the legal requirements, and that he was, on that date, submitting the signed duplicate (Exhibit "A-1"),
which he allegedly found only on or about May 26, 1959. On June 17, 1959, oppositors Natividad Icasiano de Gomez and
Enrique Icasiano filed their joint opposition to the admission of the amended and supplemental petition, but by order of
July 20, 1959, the court admitted said petition, and on July 30, 1959, oppositor Natividad Icasiano filed her amended
opposition. Thereafter, the parties presented their respective evidence, and after several hearings the court issued the

order admitting the will and its duplicate to probate. From this order, the oppositors appealed directly to this Court, the
amount involved being over P200,000.00, on the ground that the same is contrary to law and the evidence.
The evidence presented for the petitioner is to the effect that Josefa Villacorte died in the City of Manila on September 12,
1958; that on June 2, 1956, the late Josefa Villacorte executed a last will and testament in duplicate at the house of her
daughter Mrs. Felisa Icasiano at Pedro Guevara Street, Manila, published before and attested by three instrumental
witnesses, namely: attorneys Justo P. Torres, Jr. and Jose V. Natividad, and Mr. Vinicio B. Diy; that the will was
acknowledged by the testatrix and by the said three instrumental witnesses on the same date before attorney Jose
Oyengco Ong, Notary Public in and for the City of Manila; and that the will was actually prepared by attorney Fermin
Samson, who was also present during the execution and signing of the decedent's last will and testament, together with
former Governor Emilio Rustia of Bulacan, Judge Ramon Icasiano and a little girl. Of the said three instrumental
witnesses to the execution of the decedent's last will and testament, attorneys Torres and Natividad were in the
Philippines at the time of the hearing, and both testified as to the due execution and authenticity of the said will. So did the
Notary Public before whom the will was acknowledged by the testatrix and attesting witnesses, and also attorneys Fermin
Samson, who actually prepared the document. The latter also testified upon cross examination that he prepared one
original and two copies of Josefa Villacorte last will and testament at his house in Baliuag, Bulacan, but he brought only
one original and one signed copy to Manila, retaining one unsigned copy in Bulacan.
The records show that the original of the will, which was surrendered simultaneously with the filing of the petition and
marked as Exhibit "A" consists of five pages, and while signed at the end and in every page, it does not contain the
signature of one of the attesting witnesses, Atty. Jose V. Natividad, on page three (3) thereof; but the duplicate copy
attached to the amended and supplemental petition and marked as Exhibit "A-1" is signed by the testatrix and her three
attesting witnesses in each and every page.
The testimony presented by the proponents of the will tends to show that the original of the will and its duplicate were
subscribed at the end and on the left margin of each and every page thereof by the testatrix herself and attested and
subscribed by the three mentioned witnesses in the testatrix's presence and in that of one another as witnesses (except
for the missing signature of attorney Natividad on page three (3) of the original); that pages of the original and duplicate of
said will were duly numbered; that the attestation clause thereof contains all the facts required by law to be recited therein
and is signed by the aforesaid attesting witnesses; that the will is written in the language known to and spoken by the
testatrix that the attestation clause is in a language also known to and spoken by the witnesses; that the will was executed
on one single occasion in duplicate copies; and that both the original and the duplicate copies were duly acknowledged
before Notary Public Jose Oyengco of Manila on the same date June 2, 1956.
Witness Natividad who testified on his failure to sign page three (3) of the original, admits that he may have lifted two
pages instead of one when he signed the same, but affirmed that page three (3) was signed in his presence.
Oppositors-appellants in turn introduced expert testimony to the effect that the signatures of the testatrix in the duplicate
(Exhibit "A-1") are not genuine nor were they written or affixed on the same occasion as the original, and further aver that
granting that the documents were genuine, they were executed through mistake and with undue influence and pressure
because the testatrix was deceived into adopting as her last will and testament the wishes of those who will stand to
benefit from the provisions of the will, as may be inferred from the facts and circumstances surrounding the execution of
the will and the provisions and dispositions thereof, whereby proponents-appellees stand to profit from properties held by
them as attorneys-in-fact of the deceased and not enumerated or mentioned therein, while oppositors-appellants are
enjoined not to look for other properties not mentioned in the will, and not to oppose the probate of it, on penalty of
forfeiting their share in the portion of free disposal.
We have examined the record and are satisfied, as the trial court was, that the testatrix signed both original and duplicate
copies (Exhibits "A" and "A-1", respectively) of the will spontaneously, on the same in the presence of the three attesting
witnesses, the notary public who acknowledged the will; and Atty. Samson, who actually prepared the documents; that the
will and its duplicate were executed in Tagalog, a language known to and spoken by both the testator and the witnesses,
and read to and by the testatrix and Atty. Fermin Samson, together before they were actually signed; that the attestation
clause is also in a language known to and spoken by the testatrix and the witnesses. The opinion of expert for oppositors,
Mr. Felipe Logan, that the signatures of the testatrix appearing in the duplicate original were not written by the same had
which wrote the signatures in the original will leaves us unconvinced, not merely because it is directly contradicted by
expert Martin Ramos for the proponents, but principally because of the paucity of the standards used by him to support
the conclusion that the differences between the standard and questioned signatures are beyond the writer's range of

normal scriptural variation. The expert has, in fact, used as standards only three other signatures of the testatrix besides
those affixed to the original of the testament (Exh. A); and we feel that with so few standards the expert's opinion and the
signatures in the duplicate could not be those of the testatrix becomes extremely hazardous. This is particularly so since
the comparison charts Nos. 3 and 4 fail to show convincingly that the are radical differences that would justify the charge
of forgery, taking into account the advanced age of the testatrix, the evident variability of her signatures, and the effect of
writing fatigue, the duplicate being signed right the original. These, factors were not discussed by the expert.
Similarly, the alleged slight variance in blueness of the ink in the admitted and questioned signatures does not appear
reliable, considering the standard and challenged writings were affixed to different kinds of paper, with different surfaces
and reflecting power. On the whole, therefore, we do not find the testimony of the oppositor's expert sufficient to overcome
that of the notary and the two instrumental witnesses, Torres and Natividad (Dr. Diy being in the United States during the
trial, did not testify).
Nor do we find adequate evidence of fraud or undue influence. The fact that some heirs are more favored than others is
proof of neither (see In re Butalid, 10 Phil. 27; Bugnao vs. Ubag, 14 Phil. 163; Pecson vs. Coronal, 45 Phil. 216). Diversity
of apportionment is the usual reason for making a testament; otherwise, the decedent might as well die intestate. The
testamentary dispositions that the heirs should not inquire into other property and that they should respect the distribution
made in the will, under penalty of forfeiture of their shares in the free part do not suffice to prove fraud or undue influence.
They appear motivated by the desire to prevent prolonged litigation which, as shown by ordinary experience, often results
in a sizeable portion of the estate being diverted into the hands of non-heirs and speculators. Whether these clauses are
valid or not is a matter to be litigated on another occassion. It is also well to note that, as remarked by the Court of
Appeals in Sideco vs. Sideco, 45 Off. Gaz. 168, fraud and undue influence are mutually repugnant and exclude each
other; their joining as grounds for opposing probate shows absence of definite evidence against the validity of the will.
On the question of law, we hold that the inadvertent failure of one witness to affix his signature to one page of a testament,
due to the simultaneous lifting of two pages in the course of signing, is not per se sufficient to justify denial of probate.
Impossibility of substitution of this page is assured not only the fact that the testatrix and two other witnesses did sign the
defective page, but also by its bearing the coincident imprint of the seal of the notary public before whom the testament
was ratified by testatrix and all three witnesses. The law should not be so strictly and literally interpreted as to penalize the
testatrix on account of the inadvertence of a single witness over whose conduct she had no control, where the purpose of
the law to guarantee the identity of the testament and its component pages is sufficiently attained, no intentional or
deliberate deviation existed, and the evidence on record attests to the full observance of the statutory requisites.
Otherwise, as stated in Vda. de Gil. vs. Murciano, 49 Off. Gaz. 1459, at 1479 (decision on reconsideration) "witnesses
may sabotage the will by muddling or bungling it or the attestation clause".
That the failure of witness Natividad to sign page three (3) was entirely through pure oversight is shown by his own
testimony as well as by the duplicate copy of the will, which bears a complete set of signatures in every page. The text of
the attestation clause and the acknowledgment before the Notary Public likewise evidence that no one was aware of the
defect at the time.
This would not be the first time that this Court departs from a strict and literal application of the statutory requirements,
where the purposes of the law are otherwise satisfied. Thus, despite the literal tenor of the law, this Court has held that a
testament, with the only page signed at its foot by testator and witnesses, but not in the left margin, could nevertheless be
probated (Abangan vs. Abangan, 41 Phil. 476); and that despite the requirement for the correlative lettering of the pages
of a will, the failure to make the first page either by letters or numbers is not a fatal defect (Lopez vs. Liboro, 81 Phil. 429).
These precedents exemplify the Court's policy to require satisfaction of the legal requirements in order to guard against
fraud and bid faith but without undue or unnecessary curtailment of the testamentary privilege.
The appellants also argue that since the original of the will is in existence and available, the duplicate (Exh. A-1) is not
entitled to probate. Since they opposed probate of original because it lacked one signature in its third page, it is easily
discerned that oppositors-appellants run here into a dilemma; if the original is defective and invalid, then in law there is no
other will but the duly signed carbon duplicate (Exh. A-1), and the same is probatable. If the original is valid and can be
probated, then the objection to the signed duplicate need not be considered, being superfluous and irrelevant. At any rate,
said duplicate, Exhibit A-1, serves to prove that the omission of one signature in the third page of the original testament
was inadvertent and not intentional.

That the carbon duplicate, Exhibit A-1, was produced and admitted without a new publication does not affect the
jurisdiction of the probate court, already conferred by the original publication of the petition for probate. The amended
petition did not substantially alter the one first filed, but merely supplemented it by disclosing the existence of the
duplicate, and no showing is made that new interests were involved (the contents of Exhibit A and A-1 are admittedly
identical); and appellants were duly notified of the proposed amendment. It is nowhere proved or claimed that the
amendment deprived the appellants of any substantial right, and we see no error in admitting the amended petition.
IN VIEW OF THE FOREGOING, the decision appealed from is affirmed, with costs against appellants.

G.R. No. L-3362

March 1, 1951

TESTATE estate of Carlos Gil, deceased. ISABEL HERREROS VDA. DE GIL, administratrix-appellee,
vs.
PILAR GIL VDA. DE MURCIANO, oppositor-appellant.
Eligio C. Lagman for appellant.
Reyes, Albert and Agcaoili for appellee.
JUGO, J.:
The Court of First Instance of Manila admitted to probate the alleged will and testament of the deceased Carlos Gil. The
oppositor Pilar Gil Vda. de Murciano appealed to this Court, raising only question of law. Her counsel assigns the two
following alleged errors:
Primer Error. El Juzgado inferior erro al dejar de declarar que el alegado testamento de Carlos Gil no ha sido
otogar de acuerdo con la ley.
Segundo Error. Erro finalmente a legalizar el referido testamento.
The alleged will read as follows:
Primera Pagina (1)
EN EL NOMBRE DE DIOS, AMEN
Yo, Carlos Gil, de 66 aos de edad, residente de Porac, Pampanga, I. F., hallandome sano y en pleno goce de
mis facultades intelectuales, libre y expontaneamente, sin violencia, coaccion, dolo o influencia ilegal de persona
extraa, otorgo y ordeno este mi testamento y ultima voluntad en castellano, idioma que poseo y entiendo, de la
manera siguiente:
1. Declaro que durante mi matrimonio con mi esposa la hoy Isabel Herreros no tuvimos hijos;
2. Declaro que tengo propiedades situadas en Manila y en la Provincia de Pampanga;
3. Doy y adjudico a mi querida esposa Isabel Herretos todos mis bienes ya que muebles e inmuebles situados en
Manila y en Pampanga, bajo la condicion de que cuando esta muera y si hayan bienes remanentes heredadas
por ella de mi, que dichos bienes remanentes se adjudicaran a Don Carlos Worrel.
4. Nombro como albacea de mis bienes despues de mi fallecimiento al Dr. Galicano Coronel a quien tengo
absoluta confianza, con relevacion de fianza;
En testimonio de todo lo cual, firmo este mi testamento y en el margen izquierdo de cada una de sus dos
paginas, utiles con la clausula de atestiguamiento en presencia de los testigos, quienes a su vez firmaron cada
una de dichas paginas y la clausula de atestiguamiento en mi presencia cada uno de ellos con la de los demas,
hoy en Porac, Pampanga, I. F., el dia 27 de Mayo de mil novecientos treinta y nueve.

CARLOS GIL

Testificacion:

Segunda Pagina (2)

Nosotros los que suscribimos, todos mayores de edad, certificamos: que el testamento que precede este escrito
en la lengua castellana que conoce la testadora, compuesto de dos paginas utiles con la clausula de
atestiguamiento paginadas correlativamente en letras y numeros en la parte superior de la casilla, asi como todas
las hojas del mismo, en nuestra presencia y que cada uno de nosotros hemos atestiguado y firmado dicho
documento y todas las hojas del mismo en presencia del testador y en la de cada uno de nosotros.

(Fdo.) ALFREDO T. RIVERA

(Fdo.) RAMON MENDIOLA
(Fdo.) MARIANO OMAA

Regarding the correctness and accuracy of the above-copied alleged will, the court below said:
. . . The only copy available is a printed form contained in the record appeal in case G.R. No. L-254, entitled
"Testate Estate of Carlos Gil; Isabel Herreros Vda. de Gil, petitioner and appellant vs. Roberto Toledo y Gil,
oppositor and appellee." Both parties are agreed that this is a true and correct copy of the will. (P. 10, Record on
Appeal).
The appeal being only on questions of law the above finding of the court below cannot be disputed. The conclusions of
law reached by said court are based on it. Moreover, the finding is correctly based on the evidence of record. The parties
agreed that said copy is true and correct. If it were otherwise, they would not have so agreed, considering that the defect
is of an essential character and is fatal to the validity of the attestation clause.
It will be noted that the attestation clause above quoted does not state that the alleged testor signed the will. It declares
only that it was signed by the witnesses. This is a fatal defect, for the precise purpose of the attestation clause is to certify
that the testator signed the will, this being the most essential element of the clause. Without it there is no attestation at all.
It is said that the court may correct a mere clerical error. This is too much of a clerical error for it effects the very essence
of the clause. Alleged errors may be overlooked or correct only in matters of form which do not affect the substance of the
statement.
It is claimed that the correction may be made by inference. If we cure a deficiency by means of inferences, when are we
going to stop making inferences to supply fatal deficiencies in wills? Where are we to draw the line? Following that
procedure we would be making interpolations by inferences, implication, and even by internalcircumtantial evidence. This
would be done in the face of the clear, uniquivocal, language of the statute as to how the attestation clause should be
made. It is to be supposed that the drafter of the alleged will read the clear words of the statute when he prepared it. For
the court to supply alleged deficiencies would be against the evident policy of the law. Section 618 of Act No. 190, before
it was amended, contained the following provision:
. . . But the absence of such form of attestation shall not render the will invalid if it proven that the will was in fact
signed and attested as in this section provided.

However, Act No. 2645 of the Philippine Legislature, passed on July 1, 1916, besides increasing the contents of the
attestation clause, entirely suppressed the above-quoted provision. This would show that the purpose of the amending act
was to surround the execution of a will with greater guarantees and solemnities. Could we, in view of this, hold that the
court can cure alleged deficiencies by inferences, implications, and internal circumstantial evidence? Even in ordinary
cases the law requires certain requisities for the conclusiveness of circumstantial evidence.
It is contended that the deficiency in the attestation clause is cured by the last paragraph of the body of the alleged will,
which we have quoted above. At first glance, it is queer that the alleged testator should have made an attestation clause,
which is the function of the witness. But the important point is that he attests or certifies his own signature, or, to be
accurate, his signature certifies itself. It is evident that one cannot certify his own signature, for it does not increase the
evidence of its authenticity. It would be like lifting one's self by his own bootstraps. Consequently, the last paragraph of the
will cannot cure in any way the fatal defect of the attestation clause of the witnesses. Adding zero to an insufficient amount
does not make it sufficient.
It is said that the rules of statutory construction are applicable to documents and wills. This is true, but said rules apply to
the body of the will, containing the testamentary provisions, but not to the attestation clause, which must be so clear that it
should not require any construction.
The parties have cited pro and con several decisions of the Supreme Court, some of which are said to be rather strict and
others liberal, in the interpretation of section 618 of Act No. 190, as amended by Act No. 2645.
In the case of Gumban vs. Gorecho (50 Phil., 30, 31), the court had the following to say:
1. WILLS; ALLOWANCE OR DISALLOWANCE; SECTIONS 618 AND 634 OF THE CODE OF CIVIL
PROCEDURE CONSTRUED. The right to dispose of the property by will is governed entirely by statute. The
law is here found in section 618 of the Code of Civil Procedure, as amended. The law not alone carefully makes
use of the imperative, but cautiously goes further and makes use of the negative, to enforce legislative intention.
2. ID.; ID.; ATTESTATION. The Philippine authorities relating to the attestation clause to wills reviewed. The
cases of Sao vs. Quintana ([1925], 48 Phil., 506), and Nayve vs. Mojal and Aguilar ([1924], 47 Phil., 152),
particularly compared. The decision in In re Will of Quintana, supra, adopted and reaffirmed. The decision in
Nayve vs. Mojal and Aguilar, supra, modified.
3. ID.; ID.; ID.; ID. The portion of section 618 of the Code of Civil Procedure, as amended, which provides that
"The attestation clause shall state the number of sheets or pages used, upon which the will is written, and the fact
that the testator signed the will and every page thereof, or caused some other person to write his name, under his
express direction, in the presence of three witnesses, and the latter witnessed and signed the will and all pages
thereof in the presence of the testator and of each other" applied and enforced.
4. ID.; ID.; ID.; ID. An attestation clause which does not recite that the witnesses signed the will and each and
every page thereof on the left margin in the presence of the testator is defective, and such a defect annuls the will.
(Sano vs. Quintana, supra.)
In the subsequent case of Quinto vs. Morata (54 Phil., 481, 482), Judge Manuel V. Moran, now Chief Justice of the
Supreme Court, in his decision made the following pronouncement:
. . . En la clausula de atestiguamiento del testamento en cuestion, se hace constar que los testadores firmaron el
testamento en presencia de los tres testigos instrumentales y que estos firmaron el testamento los unos en
presencia de los otros, pero no se hace constar que dichos testigos firmaron el testamento enpresencia de los
testadores, ni que estos y aquellos firmaron todas y cada una de las paginas del testamento los primeros en
presencia de los segundos y vice-versa.
En su virtud, se deniega la solicitud en la que se pide la legalizacion del alegado testamento Exhibit A de
Gregorio Pueblo y Carmen Quinto, y se declara que Gregorio Pueblo murio intestado.
The Supreme Court fully affirmed the decision, laying down the following doctrine:
1. WILLS; ATTESTATION CLAUSE; EVIDENCE TO SUPPLY DEFECTS OF. The attestation clause must be
made in strict conformity with the requirements of section 618 of Act No. 190, as amended. Where said clause

fails to show on its face a full compliance with those requirements, the defect constitutes sufficient ground for the
disallowance of the will. (Sano vs. Quintana, 48 Phil., 506; Gumban vs. Gorecho, 50 Phil., 30). Evidence aliunde
should not be admitted to establish facts not appearing on the attestation clause, and where said evidence has
been admitted it should not be given the effect intended. (Uy Coque vs. Navas L. Sioca, 43 Phil., 405, 409.).
2. ID.; ID.; INTERPRETATION OF SECTION 618 OF ACT NO. 190, AS AMENDED. Section 618 of Act No.
190, as amended, should be given a strict interpretation in order to give effect to the intention of the Legislature.
Statutes prescribing formalities to be observed in the execution of wills are very strictly construed. Courts cannot
supply the defensive execution of will. (40 Cyc., p. 1079; Uy Coque vs. Navas L. Sioca, supra.)
It is true that in subsequent decisions, the court has somewhat relaxed the doctrine of the Gumban vs.
Gorchocase, supra, but not to the extent of validating an attestation clause similar to that involved herein.
In the case of Aldaba vs. Roque (43 Phil., 378), the testatrix signed the attestation clause which was complete, and it was
also signed by the two attesting witnesses. For this reason, the court said:
In reality, it appears that it is the testatrix who makes the declaration about the points contained in the above
described paragraph; however, as the witnesses, together with the testatrix, have signed the said declaration, we
are of the opinion and so hold that the words above quoted of the testament constitute a sufficient compliance
with the requirements of section 1 of Act No. 2645 which provides that: . . . (p. 381,supra.)
The attestation clause involved herein is very different.
In the case of Dischoso de Ticson vs. De Gorotiza (57 Phil., 437), it was held that:
An attestation clause to a will, copied from a form book and reading: "We, the undersigned attesting witnesses,
whose residences are stated opposite our respective names, do hereby certify that the testatrix, whose name is
signed hereinabove, has publish unto us the foregoing will consisting of two pages as her Last Will and
Testament, and has signed the same in our presence, and in witness whereof we have each signed the same and
each page thereof in the presence of said testatrix and in the presence of each other," held not to be fatally
defective and to conform to the law.
This very different from the attestation clause in the case at bar.
In the case of Grey vs. Fabie * (40 Off. Gaz., 1st Supplement, 196, No. 3, May 23, 1939), the will was objected to on the
ground that, although the attestation clause stated that "each of the pages of which the said will is composed" was signed
by the testatrix at the left margin and at the foot of the fifth page, it did not state that the signature was made in the
presence of the witnesses. It was held, however, that said deficiency was cured by the phrase "as well as by each of us in
the presence of the testatrix." The words "as well as" indicate that the testatrix signed also in the presence of the
witnesses, for the phrase "as well as" in this case is equivalent to "also." The language is clear and, unlike the attestation
clause in the present case, does not necessitate any correction. In the body of the will the testatrix stated that she signed
in the presence of each and all of the three witnesses. This was considered as a corroboration, but it was unnecessary.
In the case of Leynez vs. Leynez (40 Off. Gaz., 3rd Supplement, 51, 52, No. 7, October 18, 1939; 68 Phil., 745), the
attestation clause reads as follows:
Suscrito y declarado por el testador Valerio Leynez, como su ultima voluntad y testamento en presencia de todos
y cada uno de nosotros, y a ruego de dicho testador, firmamos el presente cada uno en presencia de los otros, o
de los demas y de la del mismo testsador, Valerio Leynez. El testamento consta de dos (2) paginas solamente.
The objection was that the attestation clause did not state that the testator and the witnesses signed each and every page
of the will. This fact , however, appears in the will itself. It is clear, therefore, that in case of the will complied with all the
requisites for its due execution. In the instant case, essential words were omitted.
In the case of Alcala vs. De Villa 1 (40 Off. Gaz., 14th Supplement, 131, 134-135, No. 23, April 18, 1939), the attestation
clause reads as follows:
Hacemos constar que en la fecha y pueblo arriba mencionadios otorgo el Sr. Emiliano Alcala su ultima voluntad o
testamentao compuesto de cuatro paginas incluida ya esta clasula de atestiguamiento. Que estabamos

presentes en el momento de leer y ratificar el que el testamento arriba mencionado es su ultima voluntad o
testamento compuesto de cuatro paginasen papel de maquinilla. Que igualmente estabamos presentes cuando
el firmo este documento al pie del mismo y en el margen izquierdo de cada pagina del testador tambien en
presencia suya y de cada uno de nosotros en cada pagina y en el margen izquierdo de esta escritura o
testamento. En su testimonio firmamos abajo en prsencia del testador y de cada uno de nosotros.
The above attestation clause is substantially perfect. The only clerical error is that it says "testador" instead of
"testamento" in the phrase "cada pagina del testador." The word "tambien" renders unnecessary the use of the verb
"firmamos."
In the case of Mendoza vs. Pilapil 2 (40 Off. Gaz., 1855, No. 9, June 27, 1941), the attestation clause did not state the
number of pages of the will. However, it was held that this deficiency was cured by the will itself, which stated that it
consisted of three pages and in fact it had three pages.
In the case of Rallos vs. Rallos (44 Off. Gaz., 4938, 4940, No. 12, October 23, 1947), decided by the Court of Appeals, the
attestation clause (translated in Spanish) reads as follows:
Nosotros, los testigos, certificamos que este que hemos firmado es el testamento y ultima voluntad, que se ha
redactado en cuatro paginas, de Numeriano Rallos, quien despues de leer y de leer y de leerle el mencionado
testamento, y despues de que ella dio su conformidad, firmo y marco con su dedo pulgar derecho en nuestra
presencia y en presencia de cada uno de nosotros, que asimismo cada uno de nosotros, los testigos, firmamos
enpresencia de la testadora y en presencia de cada uno de nosotros.
It will be noticed that the only thing omitted is the statement as to the signing of the testatrix and the witnesses of each
and every page of the will, but the omission is cured by the fact that their signatures appear on every page. This
attestation clause is different from that involved in the present case.
There is no reason why wills should not be executed by complying substantially with the clear requisites of the law,
leaving it to the courts to supply essential elements. The right to dispose of property by will is not natural but statutory, and
statutory requirements should be satisfied.
The right to make a testamentary disposition of one's property is purely of statutory creation, and is available only
upon the compliance with the requirements of the statute. The formalities which the Legislature has prescribed for
the execution of a will are essential to its validity, and cannot be disregarded. The mode so prescribed is the
measure for the exercise of the right, and the heir can be deprived of his inheritance only by a compliance with
this mode. For the purpose of determining whether a will has been properly executed, the intention of the testator
in executing it is entitled to no consideration. For that purpose only intention of the Legislature, as expressed in
the language of the statute, can be considered by the court, and whether the will as presented, shows a
compliance with the statute. Estate of Walker, 110 Cal., 387, 42 Pac., 815, 30 L. R. A., 460, 52 Am. St. Rep. 104.
In re Seaman's Estate, 80 Pac., 700, 701.)
In interpreting the legislature's thought, courts have rigidly opposed any exception tending to weaken the basic
principle underlying the law, the chief purpose of which is to see that the testator's wishes are observed. It is
possible, in some or many cases, a decedent may have thought he had made a will, but the statute says he had
not. The question is not one of his intention, but of what he actually did, or . . . failed to do. . . . It may happen . . .
that . . . wills . . . truly expressing the intertions of the testator are made without observations of the required
forms; and whenever that happens, the genuine intention is frustrated. . . . The Legislature . . . has taught of it
best and has therefore determined, to run the risk of frustrating (that intention, . . . in preference to the risk of
giving effect to or facilitating the formation of spurious wills, by the absence of forms. . . . The evil probably to arise
by giving to wills made without any form, . . ." or, in derogation of testator's wishes, fraudulently imposing spurious
wills on his effect on his estate. Churchill's Estate, 260 Pac. 94, 101, 103 Atl. 533.
It has always been the policy of this court to sustain a will if it is legally possible to do so, but we cannot break
down the legislative barriers protecting a man's property after death, even if a situation may be presented
apparently meritorious. (In Re: Maginn, 30 A. L. R., pp. 419, 420.)
In view of the foregoing, the decision appealed from is reversed, denying the probate of the alleged will and declaring
intestate the estate of the deceased Carlos Gil. With costs against the appellee. It is so ordered.
Moran, C.J., Pablo, Bengzon, Padilla and Reyes, JJ., concur.

Separate Opinions
TUAZON, J., dissenting:
The decision takes for granted that the will was written just as it was copied in the stipulation of facts by the parties. But
counsel for appellee makes the correctness of the copy an issue thereby raising the question of not whether the burnt will
possessed the statutory requirements but whether the copy is erroneous. Since this is a chief feature on which the
appellee's case is built; since, in fact, the objection to form of the attestation clause, with which the decision wholly deals,
would disappear if the appellee's contention were well founded, it is proper that in this dissenting opinion we should
accord the matter at least a passing notice.
It may be stated as background that the original of the will was filed in the Court of First Instance of Manila in 1943; that in
1945, before the will came up for probate, it was destroyed by fire or looters; that in the probate proceeding after
liberation, the parties submitted an agreed statement of facts in which the will was reproduced ascopied in the record on
appeal in another case docketed in this court on appeal as G.R. No. L-254 and decided on April 30, 1948. It further
appears from the record of that case and from the decision of this court that the controversy there concerned the right of a
nephew of the testator to impugn the will, it being alleged that he was not a legal heir and had no interest in the probate.
As transcribed in the majority decision, it will be seen that the attestation clause is truncated and meaningless. The last of
the compound sentence in incomplete, lacking an adjective phrase. Counsel for appellee contends that the phrase "ha
sido firmado por el testador" or equivalent expression between the words "del mismo" and the words "en nuestra
presencia" should be inserted if the sentence is to be complete and have sense. The attestation clause with the inclusion
of the omitted phrase, which we italicize should read thus:
Nosotros, los que suscribimos, todos mayores de edad, certificamos que el testamento que precede escrito en la
lengua castellana que conoce la testador, compuesto de las paginadas utiles con la clausula de atestiguamiento
paginadas correlativamente en letras y numeros en la parte superior de la casilla, asi como todos las hojas del
mismo (Ha sido firmado por el testador) en nuestra presencia y que cada de nosotros hemos atestiguado y
firmado dicho documento y todas las hojas del mismo presencia del testador y en la de cada uno de nosotros.
It seems obvious that the missing phrase was inadvertently left out. The probabilities of error in the copy are enhanced by
the fact that the form of the will was not in controversy. The form of the will being immaterial, it is easily conceivable that
little or on care was employed in the copying thereof in the pleading or record on appeal above mentioned. The absence
of the signature of the testator on the first page of the copy is an additional proof that little or on pain was taken to insure
accuracy in the transcription. The appearance of "la testadora" in the copy instead of "el testador" is another.
Quite aside from all this, the testator was presumed to know the law, as the decision says. Certainly, Attorney Mariano
Omaa, who drafted the whole instrument and signed it as an attesting witness, knew the law and, by the context of the
whole instrument, has shown familiarity with the rules of grammar and ability to express his idea properly.
Read in the light of these circumstances without mentioning the evidence or record, not objected to, that the testator
signed the will in the presence of the attesting witnesses so important an omission as to make the sentence senseless
granting such omission existed in the original document-could not have been intentional or due to ignorance. The most
that can be said is that the flaw was due to a clerical mistake, inadvertance, or oversight.
There is insinuation that the appellee in agreeing that the will read as it was "reproduced in the record on Appeal" above
mentioned is bound by the agreement. This is not an absolute rule. The binding effect of a stipulation on the parties does
not go to the extent of barring them or either of them from impeaching it on the score of clerical error or clear mistake.
That there was such mistake, is indubitable. It is noteworthy that the opponent and appellant herself appears not to have
noticed any defect in the attestation clause as copied in the stipulation. It would seem that in the court below she confined
her attack on the will to the alleged failure of the testator to sign the first page. We say this because it was only the alleged
unsigning of the first page of the document which the trial court in the appealed decision discussed and ruled upon. There
is not the slightest reference in the decision, direct or implied, to any flaw in the attestation clause which is by far more
important than the alleged absence of the testator's signature on the first page.
As stated the problem posed by the omission in question is governed, not by the law of wills which requires certain
formalities to be observed in the execution, but by the rules of construction applicable to statues and documents in

general. And this rule would obtain even if the omission had occurred in the original document and not in the copy alone.
In either case, the court may and should correct the error by supplying the omitted word or words.
In Testamentaria del finado Emilio Alcala, a similar situation arose and the Court said:
Es evidente que leyendo la clausula de atestiguacion se nota a simple vista que en su redaccion se ha incurrido
en omisiones que la razon y el sentido comon pueden suplirlas sin alterar ni tergiversar la intencion tanto del
testador como la de los tres testigos que intervinieron en el otorgamiento de la misma. Teniendo en cuenta la
fraselogia de la segunda parte de la clausula se observara que las omisiones, aunque son substanciales,
consisten en meros errores gramaticales que los tribunales, en el ejercicio de su discrecion y en la aplicacion de
las reglas de interpretacion de documentos, pueden subsanarlos para dar efectividad a la intencion y hacer que
el conjunto de los terminos de la clausula de atestacion surtan sus efectos.
La interpritacion que se acaba de bar a la clausula de atestacion y la correccion de los errores gramaticales de
que misma adolece, incluyendo la insercion del verbo "firmamos" que se omitio involuntariamente, esta de
acuerdo con las reglas fundamentals de interpretacion de documentos segun las cuales se debe hacer
prevalecer siempre la intencion del que haya redactado el instrumento (art. 288, Cod. de Proc. Civ.;
Pecson contra, 45 Jur. Fil., 224; 28 R. C. L., sec. 187, pags. 225, 226.)
La solucion que se acaba de bar al asunto es la que se halla mas conforme con la justificia en vista de que se ha
presentado prueba alguna que insinue siquiera que en el otorgamiento del testamento se ha cometido dolo o
fraude con el animo de perjudiar a cualquiera. (Testamentaria de Emiano Alcala, 40 G. O., 14. Suplemento, No.
23, pags. 131, 132.)
From 69 C. J., 82 83, we quote: "Words omitted from a will may be supplied by the court whenever necessary to
effectuate the testator's intention as expressed in the will; but not where the effect of inserting the words in the will would
alter or defeat such intention, or change the meaning of words that are clear and unequivocal." On pages 50, 51, the
same work says: "To aid the court in ascertaining and giving effect to the testator's intention in the case of an ambiguous
will, certain rules have been established for guidance in the construction or interpretation to be placed upon such a will,
and in general a will should be construed according to these established rules of construction." Speaking of construction
of statutes which, as has been said, is applicable to construction of documents, the same work, in Vol. 59, p. 992, says:
"Where it appears from the context that certain words have been inadvertently omitted from a statute, the court may
supply such words as are necessary to complete the sense, and to express the legislative intent.
Adding force to the above principle is the legal presumption that the will is in accordance with law. (2 Page on Wills, 840,
841; 57 Am. Jur., 720.)
Let us assume, for the purpose of this decision only, that the attestation clause was drawn as the draftsman intended, that
the mistake in language in said clause was not inadvertent, and consider the case on the premise from which the court
has approached it; is the decision well grounded, at least in the light of this court's previous decisions?
At the outset, it should be pointed out that as early as 1922 a similar case, in which the validity of the will was sustained,
found its way into this court. (Aldaba vs. Roque, 43 Phil., 378). The case was more than four-square behind the case at
bar. There the departure from the statutory formality was more radical, in that the testator took charge or writing the entire
attestation clause in the body of the will, the witnesses limiting their role to signing the document below the testator's
signature. Here, at most, the testator took away from the witness only a small part of their assigned task, leaving them to
perform the rest.
Referring to "the lack of attestation clause required by law," this court, in a unanimous decision in banc, through Mr.
Justice Villamor said (syllabus): "When the attestation clause is signed by the witnesses to the instruments besides the
testator, such attestation clause is valid and constitutes a substantial compliance with the provisions of section 1 of Act
No. 2645, even though the facts recited in said attestation appear to have been make by the testator himself."
That was good doctrine when it was announced. We think it is good law still. That ruling should set the present case at
rest unless the court wants to discard it. On the possibility that this is the intention, we will dwell on the subject further.
This Court noted in Dichoso de Ticson vs. De Gorostiza, (1922), 57 Phil., 437, "that there have been noticeable in the
Philippines two divergent tendencies in the law of wills the one being planted on strict construction and the other on
liberal construction. A late example of the former views may be found in the decision in Rodriguez vs. Alcala (1930), 55
Phil., 150, sanctioning a literal enforcement of the law. The basic case in the other direction,predicated on reason,

is Abangan vs. Abangan (1919), 40 Phil., 476, oft-cited approvingly in later decisions." In the Abangan case, unanimous
court, speaking through Mr. Justice Avancea, later Chief Justice, observed: "The object of the solemnities surrounding
the execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and testaments and to
guaranty their truth and authenticity. Therefore the laws on this subject should be interpreted in such a way as to attain
these primodial ends. But, on the other hand, also one must not lose sight of the fact that it is not the object of the law to
restrain and curtail the exercise of the right to make a will. So when an interpretation already given assures such ends,
any other interpretation whatsoever, that adds nothing but demands more requisites entirely unnecessary, useless and
frustrative of the testator's last will, must be disregarded."
Subsequent decisions which followed and adopted the Abangan principle were numerous: Avera vs. Garcia(1921), 42
Phil., 145; Aldaba vs. Roque (1922), 43 Phil., 378; Unson vs. Abella (1922,) 43 Phil., 494; Pecson vs. Coronel (1923), 45
Phil., 216; Fernandez vs. Vergel de Dios (1924), 46 Phil., 922; Nayve vs. Mojal (1924), 47 Phil., 152; De Gala vs.
Gonzales (1929), 53 Phil., 104; Rey vs. Cartegana (1931), 56 Phil., 282; Ticson vs. Gorostiza (1932), 57 Phil., 437;
Testamentaria de M. Ozoa (1933), 57 J. F., 1007; Sebastian vs. Paganiban(1934), 59 Phil., 653; Rodriguez vs.
Yap (1939)1, 40 Off. Gaz., 1st Suppl. No. 3, p. 194; Grey vs. Fabia (1939)2, 40 Off. Gaz., 1st Suppl. No. 3, p. 196; Leynez
vs. Leynez (1939)3, 40 Off. Gaz., 3rd Suppl. No. 7, p. 51; Martir vs. Martir (1940)4, 40 Off. Gaz., 7th Suppl. No. 11, p.
215; Sabado vs. Fernandez (1941)5, 40 Off. Gaz., 1844;Mendoza vs. Pilapil (1941)6 40 Off. Gaz., 1855; Alcala vs. De
Villa (1941)7, 40 Off. Gaz., 14th Suppl. No. 23, p. 131; and Lopez vs. Liboro (1948)8, 46 Off. Gaz., Suppl. No. 1, p. 211.
The majority decision says, and we quote: "If we cure a deficiency by means of inferences, when are we going to stop
making inferences to supply fatal deficiencies in wills? Where are we to draw the line?" These same questions might well
have been asked in the case above cited by the opponents of the new trends. But the so-called liberal rule does not offer
any puzzle or difficulty, nor does it open the door to serious consequences. The decisions we have cited to tell us when
and where to stop; the dividing line is drawn with precision. They say "Halt" when and where evidence aliunde to fill a void
in any part of the document is attempted. They only permit a probe, an exploration within the confines of the will, to
ascertain its meaning and to determine the existence or absence of the formalities of law. They do not allow the courts to
go outside the will or to admit extrinsic evidence to supply missing details that should appear in the will itself. This clear,
sharp limitation eliminates uncertainly and ought to banish any fear of dire results.
The case at hand comes within the bounds thus defined. If the witnesses here purposely omitted or forgot that the testator
signed the will in their presence, the testator said that he did and the witnesses by their signatures in the will itself said it
was so. No extraneous proof was necessary and none was introduced or taken into consideration.
To regard the letter rather than the spirit of the will and of the law behind it was the thing that led to unfortunate
consequences. It was the realization of the injustice of the old way that impelled this court, so we believe, to forsake the
antiquated, outworn worship of form in preference to substance. It has been said, and experience has known, that the
mechanical system of construction has operated more to defeat honest wills than prevent fraudulent ones. That, it must be
conceded, is the effect in this case of this court's rejection of the will under consideration. For the adverse party concedes
the genuineness of the document. At least, the genuineness is super obvious, and there is not the slightest insinuation of
undue pressure, mental incapacity of the testator of fraud.
It is said that for the testator to certify that he signed the will in the witnesses' presence "would be like lifting one's self by
his own bootstraps." The simile, we say with due respect, does not look to us quite well placed. Under physical law a man
cannot raise his body from the ground by his own bare hands without the aid of some mechanical appliance, at least not
for more than a flitting moment. But there is no impossibility or impropriety in one attesting to his own act unless forbidden
by rules of positive law. The rationale of our dissent is that he is not. If we were to make a metaphorical comparison, it
would be more appropriate to say that a man can and generally does himself pull the bootstraps to put the boots on.
Coming to execution of wills, we see no legitimate practical reason for objecting to the testator instead of the witnesses
certifying that he signed the will in the presence of the latter. The will is the testator's and the intervention of attesting
witnesses is designed merely to protect the testator's and not anybody else's interest.
If the sole purpose of the statute is to make it certain that the testator has definite and complete intention to pass his
property, and to prevent, as far as possible, any chance of substituting one instrument for another (1 Page on Wills, 481),
What better guaranty of the genuineness of the will can there be than a certification by the testator himself in the body of
the will so long as the testator's signature is duly authenticated? Witnesses may sabotage the will by muddling it or
attestation clause. For the testator, who is desirous of making a valid will, to do so would be a contradiction. If the
formalities are only a means to an end and not the end themselves, and that end is achieved by another method slightly
different from the prescribed manner, what has been done by the testator and the witnesses in the execution of the instant
will should satisfy both law and conscience. The chief requirements of statutes are writing, signature by the testator, and
attestation and signature of three witnesses. Whether the courts profess to follow the harsher rule, whether to follow the

milder rule, they agree on one thing that as long as the testator performs each of those acts the courts should require
no more. (1 Page on Wills, 481, 484.)
Paras, Feria, Montemayor and Bautista Angelo, JJ., concur.

RESOLUTION

March 20, 1953

TUASON, J.:
This appeal is before us on a motion for reconsideration of this court's decision. Whereas formerly six justices voted for
reversal and five for affirmance of the probate court's order admitting the will to probate, the vote upon reconsideration
was six for affirmance and five for reversal, thereby making the dissenting opinion, which had been filed, the prevailing
rule of the case. Under the circumstances, this resolution will largely be confined to a restatement of that dissenting
opinion.
The will in question was presented for probate in the Court of First Instance of Manila in 1943 with Roberto Toledo y Gil,
decedent's nephew, and Pilar Gil Vda. de Murciano, decedent's sister opposing the application. Toledo's legal right to
intervene was questioned by the proponent of the will, and the objection was sustained in an order which was affirmed by
this court in G. R. No. L-254. As a result of the latter decision, Toledo was eliminated from the case and did not appear
when the trial was resumed.
The proceeding seems to have held in abeyance pending final disposition of Toledo's appeal, and early in 1945, before
the application was heard on the merit, the record, along with the will, was destroyed, necessitating its reconstitution after
liberation. In the reconstitution, a stipulation of facts was submitted in which, according to the appealed order, "both
parties . . . agreed that the will as transcribed in the record on appeal in Case G. R. No. L-254 is true and a correct copy.
The will consisted of only two pages, and the attestation clause as thus copied reads:
NOSOTROS los que suscribimos, todos mayores de edad, certificamos: que el testamento que precede escrito
en la lengua castellana que canoce la testador, compuesto de dos paginas utiles con la clausula de
atestigamiento paginadas correlativamente en letras y numeros en la parte superior de la casilla, asi como todas
las hojas del mismo, en nuestra presencia y que cada uno de nosotros hemos atestiguado y firmado dicho
documento y todas las hojas del mismo en presencia del testador y en la de cada uno de nosotros.
(Fdo.) ALFREDO T. RIVERA.
(Fdo.) RAMON MENDIOLA.
(Fdo.) MARIANO OMAA
It will be noted from the above copy that the last of the compound sentence is truncated and meaningless. This defect is
the main basis of the appellant's sole assignment of error.
Counsel for appellee contend that the phrase "han sido firmadas por el testador" or equivalent expression between the
words "del mismo" and the words "en nuestra presencia" should be inserted if the attestation clause is to be complete and
have sense. With this insertion the attestation clause would read ". . ., asi como todas las hojas del mismo han sido
firmadas por el testador en nuestra presencia . . ." The point is well taken.
It seems obvious that the missing phrase was left out from the copy. The probabilities of error in the copy are enhanced by
the fact that the form of the Will was not controversy in Toledo's appeal. The form of the will being immaterial, it is easily

conceivable that little or no care was employed in transcribing the document in the agreement or record on appeal. The
absence of the signature of the testator on the first page of the copy is an additional proof that little or no pain taken to
insure accuracy in the transcription. The appearance of "la testadora" in the copy instead of "el testador" is another
indication of the haste and carelessness in the transcription.
Quite aside from all this, the testator was presumed to know the law, as the trial court says. Certainly, Attorney Mariano
Omaa, who drew the instrument and signed it as an attesting witness, knew the law and, by the context thereof, has
shown familiarity with the rules of grammar and ability to express his idea properly. In the light of these circumstances and
of further fact that the clause was brief and, by its importance, must have been written with utmost concern, so important
an omission as to make the clause or sentence senseless could not have been made, intentionally or otherwise, in the
original.
There is insinuation that the appellee in agreeing that the will read as it was "reproduced in the Record on appeal" is
bound by the agreement. This is not an absolute rule. The binding effect of a stipulation on the parties does not go to the
extent of barring either of them from impeaching it on the score of clerical error or clear mistake. The mistake just pointed
out clearly brings the case within the exceptions of the rule. The able counsel for the proponent of the will could not
possibly have subscribed to the agreement if they had noticed the incomplete sentence in the copy without making an
objection or reservation.
The problem posed by the omission in question is governed, not by the law of wills which requires certain formalities to be
fulfilled in the execution, but by the rules of construction applicable to statutes and documents in general. And this rule
would obtain whether the omission occurred in the original document or in the copy alone. In either case, the court may
and should correct the error by supplying the omitted word or words.
In Testamentaria del finado Emiliano Alcala, a similar situation arose and the court said:
Es evidente que leyendo la clausula de atestiguacion se nota a simple vista que en su redaccion se ha incurrido
en omisiones que la razon y el sentido cumon pueden suplirlas sin altenar ni tergiversar la intencion tanto del
testador como la de los tres testigos que intervenieron en el otorgamiento de la misma. Teniendo en cuenta la
fraseologia de la segunda parte de la clausula se observara que las omisiones, aunque son substanciales,
consisten en meros errores gramaticales que los tribunales, en el ejercicio de su discrecion y en la aplicacion de
las reglas de interpretacion de documentos, pueden subsanarlos para dar efectividad a la intencion y hacer que
el conjunto de los terminos de la clausula de atestacion surtan efectos.
La interpretacion que se acaba de dar a la clausula de atestacion y la correccion de los errores gramanticales de
que misma adolece, incluyedo la insercion del verbo "firmamos" que se omitio involuntariamente, esta de acurdo
con las reglas fundamentales de interpretacion de documentos segun las cuales se debe hacer prevalecer
siempre la intencion del que haya redactado el instrumento (art 286, Cod. de Proc. Civil; Pecson contra Coronel,
45 Jur. Fil., 224; 28 R. C. L., sec. 187, pages. 225, 226).
La solucion que se acaba de dar al asunto es la que se halla mas conforme con la justicia en vista de que no se
ha presentado prueba alguna que insinue siquiera que en el otorgamiento del testamiento se ha cometido dolo o
fraude con el animo de perjudicar a cualquiera. Testamentaria de Emiliano Alcala, 40 Gaz. Of., 14. Supplemento,
No. 23, pags. 131, 132.)
From 69 C. J. 82, 83, we quote: "Words omitted from a will may be supplied by the court whenever necessary to
effectuate the testator's intention as expressed in the will: but not where the effect of inserting the words in the will would
alter or defeat such intention, or change the meaning of words that are clear and unequivocal." On pages 50 and 51, the
same work says: "To aid the court in ascertaining and giving effect to the testator's intention in the case of an ambiguous
will, certain rules been established for guidance in the construction or interpretation to be placed upon such a will, and in
general a will should be construed according to these established rules of construction." And referring to construction of
statues which, as has been said, is applicable to construction of documents, C. J. S., in Vol. 59, p. 992, tells us that
"Where it appears from the context that certain words have been inadvertently from a statute, the court may supply such
words as are necessary to complete the sense, and to express the legislative intent."
Adding force to the above principle is the legal presumption that the will is in accordance with law. (2 Page on Wills 840;
57 Am. Jur., 720.)
But let it be assumed, for the sake of this decision only, that the attestation clause was drawn exactly as it was copied in
Toledo's record on appeal, was the mistake fatal? Was it, or was it not, cured by the testator's own declaration? to wit: "En

testimonio de lo cual, firmo este mi testamento y en el margen izquierdo de cada una de sus dos paginas utiles con la
clausula de atestiguamiento en presencia de los testigos, quienes a su vez firmaron cada una de dichas paginas y la
clausula de atestiguamiento en mi presencia cada uno de ellos con la de los demas, hoy en Porac, Pampanga, I. F., el dia
27 de marzo de mil novecientos treinta y nueve." The answer is in the negative.
As early as 1922 a similar case, in which the validity of the will was sustained, found its way into this court. SeeAldaba vs.
Roque, 43 Phil., 378. That case was more than foursquare behind the case at bar. There the departure from the statutory
formality was more radical, in that the testator took charge of writing the entire attestation clause in the body of the will,
the witnesses limiting their role to signing the document below the testator's signature. Here, at the most, the testator took
away from the witnesses only a small part of their assigned task, leaving to them the rest.
Referring to "the lack of attestation clause required by law," this court, in a unanimous decision in banc, through Mr.
Justice Villamor said in the Adalba-Roque case (syllabus):
When the attestation clause is signed by the witnesses to the instruments, besides the testator, such attestation clause is
valid and constitutes a substantial compliance with the provisions of section 1 of Act No. 2645, even though the facts
recited in said attestation clause appear to have been made by the testator himself.
That ruling should set the present case at rest unless we want to revert to the old, expressly abandoned doctrine, in a long
line of what we believe to be better-considered decisions.
This court noted in Dichoso de Ticson vs. De Gorostiza (1922), 57 Phil., 437, "that there have been noticeable in the
Philippines two divergent tendencies in the lie of wills the one being planted on strict construction and the other on
liberal construction. A late example of the former views be found in the decision in Rodriguez vs. Alcala(1930), 55 Phil.,
150, sanctioning a literal enforcement of the law. The basic rule in the other direction, predicated on reason, is Abangan
vs. Abangan (1919), 40 Phil., 476, oft-cited approvingly in later decisions."
In the Abangan case, a unanimous court, speaking through Mr. Justice Avancea, later Chief Justice, observed:
"The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid
substitution of wills and testaments and to guaranty their truth and authenticity. Therefore the laws on this subject should
be interpreted in such a way as to attain these primodial ends. But, on the other hand, also one must not lose sight of the
fact that it is not the object of the law to restrain and curtail the exercise of the right to make a will. So when an
interpretation already given assures such ends, any other interpretation whatsoever, that adds nothing but demands more
requisites entirely unnecessary, useless and frustrative of the testator's last will, must be disregarded."
Subsequent decisions which followed and adopted the Abangan principle were: Avera vs. Garcia (1921), 42 Phil.,
145; Aldaba vs. Roque (1922), 43 Phil., 378; Unson vs. Abella (1922), 43 Phil., 494; Pecson vs. Coronel (1923), 45 Phil.,
216; Fernandez vs. Vergel de Dios (1924), 46 Phil., 922; Neyve vs. Mojal (1924), 47 Phil., 152; De Gala vs.
Gonzales (1929), 53 Phil., 104; Rey vs. Cartagena (1931), 56 Phil., 282; Ticson vs. Gorostiza (1932), 57 Phil., 437;
Testamentaria de N. Ozoa (1933), 57 J. F., 1007; Sebastian vs. Panganiban (1934), 59 Phil., 653; Rodriguez vs.
Yap (1939), 40 Off. Gaz., 1st Suppl. No. 3, p. 194; Grey vs. Fabia (1939), 40 Off. Gaz., 1st Suppl., No. 3, p. 196; Leynez
vs. Leynez (1939), 40 Off. Gaz., 3rd Suppl. No. 7, p. 51; Martir vs. Martir (1940), 40 Off. Gaz., 7th Suppl. No. 11, p.
215; Sabado vs. Fernandez (1941), 40 Off. Gaz., 1844; Mendoza vs. Pilapil (1941), 40 Off. Gaz., 1855; Alcala vs. De
Villa (1941), 40 Off. Gaz., 14th Suppl. No. 23, p. 131; and Lopez vs. Liboro (1948), 46 Off. Gaz., Suppl. No. 1, p. 211.
It is objected that "If we cure a deficiency by means of inferences, when are we going to stop making inferences to supply
fatal deficiencies in wills? Where are we to draw the line?" These same question might well have been asked by the
opponents of the new trends in the cases above cited. But the so-called liberal rule does not offer any puzzle or difficulty,
nor does it open the door to serious consequences. The later decisions do tell us when and where to stop; they draw the
dividing line with precision. They do not allow evidence aliunde to fill a void in any part of the document or supply missing
details that should appear in the will itself. They only permit a probe into the will, an exploration within its confines, to
ascertain its meaning or to determine the existence or absence of the requisite formalities of law. This clear, sharp
limitation eliminates uncertainty and ought to banish any fear of dire results.
The case at hand comes within the bounds thus defined if the witnesses here purposely omitted or forgot to say that the
testator signed the will in their presence, the testator said that he did and the witnesses by their signatures in the will itself
said it was so. No extraneous proof was necessary and none was introduced or taken into consideration.

To regard the letter rather than the spirit of the will and of the law behind it was the thing that led to unfortunate
consequences. It was the realization of the injustice of the old way that impelled this court, so we believe, to forsake the
antiquated, outworn worship of form in preference to substance. It has been said, and experience has shown, that the
mechanical system of construction has operated more to defeat honest wills than prevent fraudulent ones. That, must be
conceded, would be the effect in this case if the will under consideration were rejected. For the adverse party now
concedes the genuineness of the document. At any rate, the genuineness is super obvious, and there is not the slightest
insinuation of undue pressure, mental incapacity of the testator, or fraud.
It is said that for the testator to certify that he signed the will in the witnesses' presence "would be like lifting one's self by
his own bootstraps." The simile does not look to us quite well placed. There is no impossibility or impropriety in one
attesting to his own act unless forbidden by rules of positive law. The rationale of this decision is that he is not. If we were
to make a metaphorical comparison, it would be more correct to say that a man can and generally does himself pull the
bootstraps when he puts his boots on.
Coming to execution of wills, we see no legitimate, practical reason for objecting to the testator instead of the witnesses
certifying that he signed the will in the presence of the latter. The will is of the testator's own making, the intervention of
attesting witnesses being designed merely to protect his interest. If the sole purpose of the statute in requiring the
intervention of witnesses is to make it certain that the testator has definite and complete intention to pass his property, and
to prevent, as far as possible, any chance of substituting one instrument for another (1 Page on Wills, 481), what better
guaranty of the genuineness of the will can there be than a certification by the testator himself in the body of the will so
long as the testator's signature is duly authenticated? Witnesses may sabotage the will by muddling and bungling it or the
attestation clause. For the testator, who is desirous of making a valid will, to do so would be a contradiction. If the
formalities are only a means to an end and not the end themselves, and that end is achieved by another method slightly
from the prescribed manner, what has been done by the testator and the witnesses in the execution of the instant will
should satisfy both law and conscience.
A second ground of attack on the questioned will is that the first page or sheet thereof does not bear the testator's
signature. The discussion on the correctness of the copy of the attestation clause amply answers this objection in fact, the
appellee's case is much stronger on this point for the reason that there is not only speculative but also positive basis for
the conclusion that the testator's signature was affixed to the first page of the original. Both the testator and the attesting
witnesses stated in the will and in the attestation clause, respectively, that the former signed both pages or sheets of the
testament.
Upon the foregoing consideration, the order of the probate court is affirmed with costs.
A motion dated February 17, 1953, was filed after the motion for reconsideration was deliberated and voted upon, in
behalf of the minor children of Carlos Worrel, who was a residuary legatee under the will and who is alleged to have died
on February 6, 1949. The motion prays that a guardian ad litem be appointed for the said children, and allowed to
intervene and file "A Supplementary Memorandum in Support of Appellant's (Appellee's?) Motion for reconsideration."
Counsel for the appellant objects to the motion on the ground that the movants having only a contingent interest under the
will are not of right entitled to intervene.
As this case has already been considerably delayed and thoroughly considered and discussed from all angles, it is the
sense of the court that the children's intervention with the consequent further delay of the decision would not serve the
best interest of the parties. For this reason, the motion is denied.

G.R. No. L-4029 January 25, 1908

In the matter of the will of DOMINGA BUTALID. - Probate proceedings. - GAUDENCIO MENDOZA, petitioner-appellant.
J. Clarin for appellant.
B. Reyes for appellee.

ARELLANO, C.J. :chanrobles virtual law library

On November 17, 1905, Gaudencio Mendoza, as executor of Dominga Butalid, who died on the 17th of October of the
same year, filed with the Court of First Instance, for its allowance and other probate proceedings, a will said to have been
executed by the latter person on the 16th day of September of the same year.chanroblesvirtualawlibrary chanrobles virtual
law library
Upon publication of the notice of the petition, Esteban Lumain y Butalid, Esteban Butalid, Nicolas Butalid, and Corcela
Butalid, nephews and niece, respectively, and heirs of the deceased Dominga Butalid, appeared in court and contested
the will, alleging "that the said Dominga Butalid, at the date of the execution of the said document, was not in the free use
of her intellectual powers, on the following grounds, to wit: That the above-mentioned Dominga Butalid, then about 90
years old, was lying in bed seriously ill, senseless, and unable to utter a single words, so that she did not know what she
was doing when she executed the will; that this document was executed under the influence and by the direction of
Gaudencio Mendoza, as one of the heir designated in said will."chanrobles virtual law library
An issue having been raised by this contest, the trial was commenced, both parties presenting their respective oral
evidence, besides the documentary evidence exhibited by the petitioner.chanroblesvirtualawlibrary chanrobles virtual law
library
This documentary proof consists of a will formerly executed by the said Dominga Butalid in the presence of Jose Conui y
Vicente, a notary public in the Province of Bohol, and the number of witnesses required by law; it was dated March 31,
1897, and written on stamped paper of the fifth class, current term, the document on record being the first original copy
issued with the formalities of the law to the testatrix by the same notary. According to this testament, executed with all the
requirements prescribed by the law then in force, the testatrix, Dominga Butalid, as shown by her cedula exhibited to the
notary, and from which her personal description was taken, was at that time 76 years old and had made her last will in
twelve clauses, in the following manner: First, as to her personal circumstances, she declared that she was single, that
her father and mother were dead, and that she could freely dispose of her estate; second, in regard to the designation of
her heirs, she stated that not having any obligatory heir, she designated as heirs Juanita Mendoza y Butalid, Januaria
Mendoza y Butalid, Gaudencio Mendoza y Butalid, and in representation of Margarita Butalid, deceased, the children of
the latter named Jose, Nicolas, Jacinto, Felix, Leogario, Maria, Ostoquia, and Emelda, all surnamed Clarin y Butalid; third,
as to the legacies, she left some to Ciriaca Mendoza y Butalid, Eduarda Galab, Maria Quelelo, and Saturnina
Loquento.chanroblesvirtualawlibrary chanrobles virtual law library
This will existing, duly executed in a solemn manner on the said date of March 31, 1897, another will appears, dated the
16th of September, 1905, which is the one contested, the same having been executed in conformity with the law in force,
and consisting of ten clauses, the second of which corresponds to the second clause of the former will, and, like the other,
relates to the testatrix's personal circumstances; and the third clause, concerning the designation of heirs, is also an exact
transcription of the corresponding clause in the other will. There are, therefore, instituted as heirs in the second will the
same persons who were designated as such in the first, and the last will is almost the same in its fourth clause, but with
the following discrepancies: (1) To Juanita Mendoza there were allotted in the first will, besides other property bequeathed
to her in the second will, 50 head of cattle in the pueblo of Carmen, and 3 mango trees in Cogon, within the municipality of
the capital, while by the second will the 50 head of cattle were omitted and replaced by 60 mango trees planted in Cogon,
Mansasa, Bohol, and Manga, within the municipality, the capital of the province, and in the sitios of Sunculan and Tutula,
within the municipality of Danis; (2) by the first will Gaudencio Mendoza y Butalid was to receive 50 head of cattle,
Januaria Mendoza another 50 head of cattle, and the children of the late Margarita Butalid were also to receive an equal
number of head of cattle, besides other property bequeathed to Januaria and to the Clarin family under both wills, while in
the second will the allotments of cattle was suppressed; (3) in regard to legacies, those contained in the first will, in favor
of Eduarda Galab and Saturnina Loquente, servants of the testatrix, and consisting of one head of cattle to each, were
revoked by the will; (4) according to a the ninth clause of the first will, Eduardo Calceta was indebted in the sum of P800,
which he was to pay in equal parts to the heirs, and according to the second will, (clause 8) said debt was reduced to
P300, to be paid to the same heirs and in a similar manner; (5) the sixth clause of the first will is contained in the fifth
clause of the second, and the sixth clause of the latter will is to be found in the fifth clause of the former; the last three
clauses in the first will were suppressed, the tenth clause of the second will being that in which the testatrix requests
Mateo Rocha to sign in her place. So that the terms of the first will, solemnly executed in the presence of a notary public
and the required number of witnesses, are substantially preserved in their entirety, and by the clauses of this will neither
the other nephews and niece of the testatrix nor the other parties contesting the same are in any wise favored with the
exception of those who are designated as heirs or legatees, whose shares are alike in both will. And with reference to

Gaudencio Mendoza, who, in the last will, is appointed executor, and in the first will was to receive one-fourth part of the
estate and a certain portion of property, the last will entitles him to only an even portion of the property mentioned in its
fifth clause (formerly the sixth clause), by the terms of which it is ordered that the whole number of cattle be equally
distributed among the four heirs.chanroblesvirtualawlibrary chanrobles virtual law library
Such are the terms and the legal nature oaf the two wills, which must not be overlooked in discussing the purpose of the
action brought by the so-called nephews and niece of the late testatrix.chanroblesvirtualawlibrary chanrobles virtual law
library
Everything relating to the terms of the will, its date and signature by the witnesses having been established, the same is
contested on the following grounds: That the testatrix was about 90 years old, and according to the cross- examination
she was 100 years old or was at least 93 years of age; that she was lying in her bed, seriously ill, senseless, and unable
to speak a single word, in such condition that when she executed the will she did not know what she was doing, and
according to the testimony of the witnesses her body was bent and she could only walk with the help of a walking
stick.chanroblesvirtualawlibrary chanrobles virtual law library
In opposition to the first allegation mentioned above, we find, in the will executed in 1897, that according to the cedula of
the testatrix the notary public stated therein that she was then 76 years old, so that in 1905 she must have been 84 years
of age only.chanroblesvirtualawlibrary chanrobles virtual law library
In regard to the second allegation it is admitted that the contested will was, according to the witnesses subscribing the
same, executed on the afternoon of Saturday, the 16th of September, and that on the following morning the
holy viaticum was administered to the testatrix though her death did not occur until the 18th of the following
October.chanroblesvirtualawlibrary chanrobles virtual law library
The witnesses for the contesting parties, brought before the court to show the state of the things and chiefly the mental
condition of the testatrix during those two days, are Filomena Lumay, Guillerma Taporoc, and Esteban Dalap. The first
witness testified only that she could not hear the testatrix making any answer; the second speaks about groans of the
testatrix, and this witness seems to be the only one to refer to this detail, as though she wished to certify the mental
incapacity of the patient; although said witness asserts that the testatrix, when questioned with these words " ima, ima,
what hurts you," replied with groans, and the same witness when cross-examined as to whether or not the patient became
angry when her body was being rubbed, the former said that on the contrary, the patient thanked her for it. The third
witness, sacristan of the parish, who assisted the priest in the administration of the viaticum, although he tended to
corroborate the state of unconsciousness of the patient on the day following the date of the execution of the will, by his
testimony he has nevertheless demonstrated to the contrary, because he states that, when the viaticum was administered,
to the ritual questions regarding her religious creed (although the witness in his capacity of sacristan was obligated to
reply), the patient answered "yes, I believe," "I believe in it;" and the witness, being pressed by the counsel for the
contesting parties, recited textually in his own dialect the words used by the patient in her reply to the priest; he further
testified that the patient confessed to the priest on the previous night, and about this he was very sure; and it being the
point under discussion, that on Sunday the will was not executed, the witness testified that when he was gathering
together the paraphernalia used for the viaticum he overheard Jose Bautista, the person who wrote the will, "questioning
the patient about the number of mango trees," which could not have taken place if the patient were truly in a senseless
condition.chanroblesvirtualawlibrary chanrobles virtual law library
In the case of Hernaez vs. Hernaez, 1 decided by this court, the base of impugnment was that the testatrix, on the date of
the execution of the will, was more than 80 years old and was so ill that she had received the sacraments three days
before, and two days later she died; that some time before her form was bent, and that she used to give contradictory
orders on account of her senile weakness; an attempt was made to prove that the testatrix was so seriously ill that she
could not speak; that, on account of her old age, she walked with her body bent and used to give contradictory orders,
and that, when she received the sacraments, she could not be understood when she spoke. This court, however, laid
down the doctrine that a presumption exists in favor of the sanity of the testator, and the obligation to prove the mental
incapacity of the latter rests upon the party opposing the probate of the will.chanroblesvirtualawlibrary chanrobles virtual
law library
Therefore, it does not appear as proven, not even by the witnesses for the opposing party, that the testatrix was more than
100, or 93, or even 90 years old, that she was seriously ill, and that she could not speak a word; rather quite the contrary
appears from a disinterested consideration of the declarations made by two of these witnesses, who state facts which do

not show any lack of intelligent continuity of purpose. The four witnesses to the will unanimously affirm the perfectly sane
condition of the testatrix, no positive contradiction or reason making their testimony incredible appearing from the record.
It has not been shown up to the present why it should not be believed.chanroblesvirtualawlibrary chanrobles virtual law
library
Against the testimony of Mateo Rocha it is said in the brief of the appellees that he could not determine at once the
number of doors in the room of the deceased; that he said first that he had written the will, and afterwards that he had not;
that the deceased was able to leave her bed, while the other witnesses state that she could only move her head; that he
was frightened when he knew that the will was to be impugned. In all of this, the important question is the one relating to
the person who wrote the last will, regarding which the existence of the contradiction is not true; this witness repeatedly
declared that the one who wrote the will was Juan Bautista, who read the former will to the testatrix, and that the latter
pointed out what was to be modified, omitted, or partially omitted, as the part relating to the cattle, because these animals
were already dead, and the legacies to the two servants who were no longer in service. To the question of the court,
"What was the first thing you did?" he replied:
Dominga Butalid ordered the old will to be read; each paragraph was translated into Bisaya, and then she ordered what
she had said before to be stricken out, and caused the number of mango trees to be increased to sixty, and the lands of
Masasa.
Q.

What was done after the perusal of the old will? chanrobles virtual law library

A.

It was written.chanroblesvirtualawlibrary chanrobles virtual law library

Q.

Who did the writing? chanrobles virtual law library

A.

Juan Bautista.

And in reply to cross-examination, he said:

Yes sir; she made him do the copying and when they arrived at the paragraph relating to the cattle, she caused it to be
taken out, which paragraph was marked by Juan with a pencil; ... when the will was finished, Juan asked her if she knew
how to sign; she replied in the negative, and then Juan asked who was to sign in her stead, to which she said that I should
sign.
This witness was then instructed by her as to where he ought to sign.chanroblesvirtualawlibrary chanrobles virtual law
library
Against the testimony of Juan Bautista nothing else is stated, except that he has replied by means of subterfuges when he
was examined about the conversation he had with one of the witnesses of the oppositors. "It does not appear to be so," "I
did not say those words," " I have not said such words" "I was there all the time" - these are the replies given in relation to
the statement of the witness Cirila de Torralba, by whose statement it was attempted to prove that Juan Bautista had left a
party of friends, in the former's house, on Sunday the 17th in order to go and finish the will; this statement is inconsistent
with another made by the said lady's husband for the purpose of showing that on the same day Mateo Rocha had been at
that house and said that he was astonished at the fact that a will had been signed the previous day, the 16th, when the
deceased could no longer speak. In spite of all this, in accordance with the above-stated declaration of the witness
Esteban Dalap, a sacristan, the following question was asked this witness:
Do you not remember either that the old woman did not reply when you asked her how many mango trees were to be
stated in the will, at 10 o'clock on Sunday morning?
A.

How could the old woman reply, if I did not go there?

Gaudencio Mendoza, the petitioner, in reply to cross- examination, said that he was instituted as an heir, the same as "his
sister Juanita, who lived with the old woman, and Januaria Mendoza, and Sr. Clarin and his sister."
Q.

Besides this, is there no testamentary clause in favor of any other relative? chanrobles virtual law library

A.

In that will there is none; neither in the old nor in the new will.

Relating to Guillerma Taparoc, a witness of the opposition, already mentioned:

Q.

Did Guillerma rub her stomach? chanrobles virtual law library

A.
She wanted to do so, but the old woman did not wish it; for this reason she became
angry.chanroblesvirtualawlibrary chanrobles virtual law library
Q.

Guillerma's husband is her first nephew. Is not Mendoza his surname? chanrobles virtual law library

A.

Yes sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q.

Were you not a friend of hers? chanrobles virtual law library

A.

No, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q.

Have you had any disagreement ( disgusto) with her?chanrobles virtual law library

A.

I do not know whether she had any.chanroblesvirtualawlibrary chanrobles virtual law library

Q.
But have any misunderstandings occurred, on account of which she had animosity against you? chanrobles virtual
law library
A.

I can not say.

The will of 1897 being a public document, authorized by a notary, who testifies to its contents, and under which the
testatrix would have died, had the other will of 1905 not been executed, it can be inferred by means of the evidence,
whether the last will of the deceased was substituted or not by some person intending to obtain benefit for himself or for
anyone else by imagining what has not taken place; and certainly nobody is benefited by the will of 1905, except Camilo
Calceta, with reference to the balance of a debt which appeared as 800 pesos in the will of 1897, and as 300 pesos in that
of 1905. The petitioner Gaudencio Mendoza, who was instituted as heir in the former will, to a considerable portion of the
property besides the portion which might be assigned to him on dividing pro rata with the other three heirs the cattle and
the lands where the same pastured, has by virtue of the second will this equal portion only, losing the other part; and if the
execution of the latter will is attributed to his influence and direction, his intention in changing benefit for prejudiced can
not be explained.chanroblesvirtualawlibrary chanrobles virtual law library
The last will, which makes a reduction in the quantity of the property only (and this property being of only one kind, namely
the cattle, and things pertaining thereto), and said will being amendatory of conditions which could not be fulfilled eight
years after its execution, on account of the death of the cattle distributed by her in portions of 60 and 50 head to each of
the four heirs, a substitution of the will of the testatrix can not be presumed, much less when such substitution is attributed
to one of the heirs, and he being the least benefited in the last will alleged to have been substituted; it further appears that
no benefit is obtained by the substitution, but, on the contrary, a considerable diminution of the portions
allotted.chanroblesvirtualawlibrary chanrobles virtual law library
If, by the cross-examination of this same witness regarding any testamentary disposition in favor of any other relative, it is
meant to insinuate that all the desires of the testatrix were not honestly expressed, then they were supposing what has
been denied - that is, that the testatrix was in full possession of all her faculties because she expressed a wish which was
not included in the will - and this allegation should be explicit and duly proven. On the other hand, the two wills are
identical in the designation of the heirs, the fact which determines the testate succession, while the opposition and
evidence tend only to show an intestate succession in which other relatives may be included, on account of differences
resulting from the certification of the proceedings, which would not appear to be a legitimate and necessary consequence
of a declaration of nullity of the last will.chanroblesvirtualawlibrary chanrobles virtual law library

Upon these bases, we reverse the judgment appealed from, and hereby declare the will presented for legalization to be
valid and sufficient, without any special ruling as to costs. So ordered.chanroblesvirtualawlibrary chanrobles virtual law
library
Torres, Mapa, Johnson, Carson, Willard and Tracey, JJ., concur.

G.R. No. 4445

September 18, 1909

CATALINA BUGNAO, proponent-appellee,

vs.
FRANCISCO UBAG, ET AL., contestants-appellants.
Rodriguez and Del Rosario for appellants.
Fernando Salas for appellee.
CARSON, J.:
This is an appeal from an order of the Court of First Instance of Oriental Negros, admitting to probate a document
purporting to be the last will and testament of Domingo Ubag, deceased. The instrument was propounded by his widow,
Catalina Bugnao, the sole beneficiary thereunder, and probate was contested by the appellants, who are brothers and
sisters of the deceased, and who would be entitled to share in the distribution of his estate, if probate were denied, as it
appears that the deceased left no heirs in the direct ascending or descending line.
Appellants contend that the evidence of record is not sufficient to establish the execution of the alleged will in the manner
and form prescribed in section 618 of the Code of Civil Procedure; and that at the time when it is alleged that the will was
executed, Ubag was not of sound mind and memory, and was physically and mentally incapable of making a will.
The instrument propounded for probate purports to be the last will and testament of Domingo Ubag, signed by him in the
presence of three subscribing and attesting witnesses, and appears upon its face to have been duly executed in
accordance with the provisions of the Code of Civil Procedure touching the making of wills.
Two of the subscribing witnesses, Victor J. Bingtoy and Catalino Mario, testified in support of the will, the latter being the
justice of the peace of the municipality wherein it was executed; and their testimony was corroborated in all important
details by the testimony of the proponent herself, who was present when the will was made. It does not appear from the
record why the third subscribing witness was not called; but since counsel for the contestants makes no comment upon
his absence, we think it may safely be inferred that there was some good and sufficient reason therefore. In passing,
however, it may be well to observe that, when because of death, sickness, absence, or for any other reason, it is not
practicable to call to the witness stand all the subscribing witnesses to a will offered for probate, the reason for the
absence of any of these witnesses should be made to appear of record, and this especially in cases such as the one at
bar, wherein there is a contests.
The subscribing witnesses gave full and detailed accounts of the execution of the will and swore that the testator, at the
time of its execution, was of sound mind and memory, and in their presence attached his signature thereto as his last will
and testament, and that in his presence and in the presence of each other, they as well as the third subscribing witness.
Despite the searching and exhaustive cross-examination to which they were subjected, counsel for appellants could point
to no flaw in their testimony save an alleged contradiction as to a single incident which occurred at or about the time when
the will was executed a contradiction, however, which we think is more apparent than real. One of the witnesses stated
that the deceased sat up in bed and signed his name to the will, and that after its execution food was given him by his
wife; while the other testified that he was assisted into a sitting position, and was given something to eat before he signed
his name. We think the evidence discloses that his wife aided the sick man to sit up in bed at the time when he signed his
name to the instrument, and that he was given nourishment while he was in that position, but it is not quite clear whether
this was immediately before or after, or both before and after he attached his signature to the will. To say that the sick man

sat up or raised himself up in bed is not necessarily in conflict with the fact that he received assistance in doing so; and it
is not at all improbable or impossible that nourishment might have been given to him both before and after signing the will,
and that one witness might remember the former occasion and the other witness might recall the latter, although neither
witness could recall both. But, however this may have been, we do not think that a slight lapse of memory on the part of
one or the other witness, as to the precise details of an unimportant incident, to which his attention may not have been
particularly directed, is sufficient to raise a doubt as to the veracity of these witnesses, or as to the truth and accuracy of
their recollection of the fact of the execution of the instrument. Of course, a number of contradictions in the testimony of
alleged subscribing witnesses to a will as to the circumstances under which it was executed, or even a single
contradiction as to a particular incident, where the incident was of such a nature that the intention of any person who was
present must have been directed to it, and where the contradictory statements in regard to it are so clear and explicit as to
negative the possibility or probability of mistake, might well be sufficient to justify the conclusion that the witnesses could
not possibly have been present, together, at the time when it is alleged the will was executed; but the apparent
contradictions in the testimony of the witnesses in the case at bar fall far short of raising a doubt a to their veracity, and on
the other hand their testimony as a whole gives such clear, explicit, and detailed account of all that occurred, and is so
convincing and altogether satisfactory that we have no doubt that the trial judge who heard them testify properly accepted
their testimony as worthy of entire confidence and belief.
The contestants put upon the stand four witnesses for the purpose of proving that at the time and on the occasion when
the subscribing witnesses testified that the will was executed, these witnesses were not in the house with the testator, and
that the alleged testator was at that time in such physical and mental condition that it was impossible for him to have
made a will. Two of these witnesses, upon cross-examination, admitted that they were not in the house at or between the
hours of four and six in the afternoon of the day on which the will is alleged to have been made, this being the time at
which the witnesses in support of the will testified that it was executed. Of the other witnesses, one is a contestant of the
will, Macario Ubag, a brother of the testator, and the other, Canuto Sinoy, his close relative. These witnesses swore that
they were in the house of the deceased, where he was lying ill, at or about the time when it is alleged that the will was
executed, and that at that time the alleged subscribing witnesses were not in the house, and the alleged testator was so
sick that he was unable to speak, to understand, or to make himself understood, and that he was wholly incapacitated to
make a will. But the testimony of Macario Ubag is in our opinion wholly unworthy of credence. In addition to his manifest
interest in the result of the investigation, it clearly discloses a fixed and settled purpose to overthrow the will at all costs,
and to that end an utter disregard of the truth, and readiness to swear to any fact which he imagined would aid in securing
his object. An admittedly genuine and authentic signature of the deceased was introduced in evidence for comparison with
the signature attached to the will, but this witness in his anxiety to deny the genuineness of the signature of his brother to
the will, promptly and positively swore that the admittedly genuine signature was not his brother's signature, and only
corrected his erroneous statement in response to a somewhat suggestive question by his attorney which evidently gave
him to understand that his former answer was likely to prejudice his own cause. On cross-examination, he was forced to
admit that because his brother and his brother's wife (in those favor the will was made) were Aglipayanos, he and his
other brothers and sisters had not visited them for many months prior to the one particular occasion as to which testified;
and he admitted further, that, although he lived near at hand, at no time thereafter did he or any of the other members of
his family visit their dying brother, and that they did not even attend the funeral. If the testimony of this witness could be
accepted as true, it would be a remarkable coincidence indeed, that the subscribing witnesses to the alleged will should
have falsely pretended to have joined in its execution on the very day, and at the precise hour, when this interested
witness happened to pay his only visit to his brother during his last illness, so that the testimony of this witness would
furnish conclusive evidence in support of the allegations of the contestants that the alleged will was not executed at the
time and place or in the manner and form alleged by the subscribing witnesses. We do not think that the testimony of this
witness nor any of the other witnesses for the contestants is sufficient to raise even a doubt as to the truth of the testimony
of the subscribing witnesses as to the fact of the execution of the will, or as to the manner and from in which it was
executed.
In the course of the proceedings, an admittedly genuine signature of the deceased was introduced in evidence, and upon
a comparison of this signature with the signature attached to the instrument in question, we are wholly of the opinion of
the trial judge, who held in this connection as follows:
No expert evidence has been adduced with regard to these two signatures, and the presiding judge of this court
does not claim to possess any special expert knowledge in the matter of signatures; nevertheless, the court has
compared these two signatures, and does not find that any material differences exists between the same. It is true
that the signature which appears in the document offered for authentication discloses that at the time of writing the
subscriber was more deliberate in his movements, but two facts must be acknowledge: First, that the testator was

seriously ill, and the other fact, that for some reason which is not stated the testator was unable to see, and was a
person who was not in the habit of signing his name every day.
These facts should sufficiently explain whatever difference may exist between the two signatures, but the court
finds that the principal strokes in the two signatures are identical.
That the testator was mentally capable of making the will is in our opinion fully established by the testimony of the
subscribing witnesses who swore positively that, at the time of its execution, he was of sound mind and memory. It is true
that their testimony discloses the fact that he was at that time extremely ill, in an advanced stage of tuberculosis
complicated with severe intermittent attacks of asthma; that he was too sick to rise unaided from his bed; that he needed
assistance even to rise himself to a sitting position; and that during the paroxysms of asthma to which he was subject he
could not speak; but all this evidence of physical weakness in no wise establishes his mental incapacity or a lack of
testamentary capacity, and indeed the evidence of the subscribing witnesses as to the aid furnished them by the testator
in preparing the will, and his clear recollection of the boundaries and physical description of the various parcels of land set
out therein, taken together with the fact that he was able to give to the person who wrote the will clear and explicit
instructions as to his desires touching the disposition of his property, is strong evidence of his testamentary capacity.
Counsel for appellant suggests that the fact that the alleged will leaves all the property of the testator to his widow, and
wholly fails to make any provision for his brothers or sisters, indicates a lack of testamentary capacity and undue
influence; and because of the inherent improbability that a man would make so unnatural and unreasonable a will, they
contend that this fact indirectly corroborates their contention that the deceased never did in fact execute the will. But when
it is considered that the deceased at the time of his death had no heirs in the ascending or descending line; that a bitter
family quarrel had long separated him from his brothers and sisters, who declined to have any relations with the testator
because he and his wife were adherents of the Aglipayano Church; and that this quarrel was so bitter that none of his
brothers or sisters, although some of them lived in the vicinity, were present at the time of his death or attended his
funeral; we think the fact that the deceased desired to leave and did leave all of his property to his widow and made no
provision for his brothers and sisters, who themselves were grown men and women, by no means tends to disclose either
an unsound mind or the presence of undue influence on the part of his wife, or in any wise corroborates contestants'
allegation that the will never was executed.
It has been said that "the difficulty of stating standards or tests by which to determine the degree of mental capacity of a
particular person has been everywhere recognized, and grows out of the inherent impossibility of measuring mental
capacity, or its impairment by disease or other causes" (Greene vs. Greene, 145 III., 264, 276); and that "it is probable
that no court has ever attempted to lay down any definite rule in respect to the exact amount of mental capacity requisite
for the making of a valid will, without appreciating the difficulty of the undertaking" (Trish vs. Newell, 62 III., 196, 203).
Between the highest degree of soundness of mind and memory which unquestionably carries with it full testamentary
capacity, and that degree of mental aberration generally known as insanity or idiocy, there are numberless degrees of
mental capacity or incapacity, and while on one hand it has been held that "mere weakness of mind, or partial imbecility
from the disease of body, or from age, will not render a person incapable of making a will, a weak or feeble minded person
may make a valid will, provided he has understanding memory sufficient to enable him to know what he is about, and how
or to whom he is disposing of his property" (Lodge vs.Lodge, 2 Houst. (Del.), 418); that, "To constitute a sound and
disposing mind, it is not necessary that the mind should be unbroken or unimpaired, unshattered by disease or otherwise"
(Sloan vs. Maxwell, 3 N. J. Eq., 563); that "it has not been understood that a testator must possess these qualities (of
sound and disposing mind and memory) in the highest degree. . . . Few indeed would be the wills confirmed, if this is
correct. Pain, sickness, debility of body, from age or infirmity, would, according to its violence or duration, in a greater or
less degree, break in upon, weaken, or derange the mind, but the derangement must be such as deprives him of the
rational faculties common to man" (Den. vs. Vancleve, 5 N. J. L.,680); and, that "Sound mind does not mean a perfectly
balanced mind. The question of soundness is one of degree" (Boughton vs. Knight, L. R.,3 P. & D., 64; 42 L. J. P., 25); on
the other hand, it has been held that "testamentary incapacity does not necessarily require that a person shall actually be
insane or of an unsound mind. Weakness of intellect, whether it arises from extreme old age from disease, or great bodily
infirmities or suffering, or from all these combined, may render the testator incapable of making a valid will, providing such
weakness really disqualifies her from knowing or appreciating the nature, effects, or consequences of the act she is
engaged in" (Manatt vs. Scott, 106 Iowa, 203; 68 Am. St. Rep., 293, 302).
But for the purposes of this decision it is not necessary for us to attempt to lay down a definition of testamentary capacity
which will cover all possible cases which may present themselves, because, as will be seen from what has already been

said, the testator was, at the time of making the instrument under consideration, endowed with all the elements of mental
capacity set out in the following definition of testamentary capacity which has been frequently announced in courts of last
resort in England and the United States; and while is some cases testamentary capacity has been held to exist in the
absence of proof of some of these elements, there can be no question that, in the absence of proof of very exceptional
circumstances, proof of the existence of all these elements in sufficient to establish the existence of testamentary
capacity.
Testamentary capacity is the capacity to comprehend the nature of the transaction which the testator is engaged
at the time, to recollect the property to be disposed of and the person who would naturally be supposed to have
claims upon the testator, and to comprehend the manner in which the instrument will distribute his property among
the objects of his bounty.
(Cf. large array of cases cited in support of this definition in the Encyclopedia of Law, vol. 23, p. 71, second edition.)
In our opinion, the evidence of record establishes in a strikingly conclusive manner the execution of the instrument
propounded as the last will and testament of the deceased; that it was made in strict conformity with the requisites
prescribed by law; and that, at the time of its execution, the deceased was of sound mind and memory, and executed the
instrument of his own free will and accord.
The order probating the will should be land is hereby affirmed, with the cost of this instance against the appellants.
Arellano, C. J., Torres, Johnson, and Moreland, JJ., concur.

G.R. No. L-13431

November 12, 1919

In re will of Ana Abangan.

GERTRUDIS ABANGAN, executrix-appellee,
vs.
ANASTACIA ABANGAN, ET AL., opponents-appellants.
Filemon Sotto for appellants.
M. Jesus Cuenco for appellee.

AVANCEA, J.:
On September 19, 1917, the Court of First Instance of Cebu admitted to probate Ana Abangan's will executed July, 1916.
From this decision the opponent's appealed.
Said document, duly probated as Ana Abangan's will, consists of two sheets, the first of which contains all of the
disposition of the testatrix, duly signed at the bottom by Martin Montalban (in the name and under the direction of the
testatrix) and by three witnesses. The following sheet contains only the attestation clause duly signed at the bottom by the
three instrumental witnesses. Neither of these sheets is signed on the left margin by the testatrix and the three witnesses,
nor numbered by letters; and these omissions, according to appellants' contention, are defects whereby the probate of the
will should have been denied. We are of the opinion that the will was duly admitted to probate.
In requiring that each and every sheet of the will should also be signed on the left margin by the testator and three
witnesses in the presence of each other, Act No. 2645 (which is the one applicable in the case) evidently has for its object
(referring to the body of the will itself) to avoid the substitution of any of said sheets, thereby changing the testator's
dispositions. But when these dispositions are wholly written on only one sheet signed at the bottom by the testator and
three witnesses (as the instant case), their signatures on the left margin of said sheet would be completely purposeless. In
requiring this signature on the margin, the statute took into consideration, undoubtedly, the case of a will written on several
sheets and must have referred to the sheets which the testator and the witnesses do not have to sign at the bottom. A

different interpretation would assume that the statute requires that this sheet, already signed at the bottom, be signed
twice. We cannot attribute to the statute such an intention. As these signatures must be written by the testator and the
witnesses in the presence of each other, it appears that, if the signatures at the bottom of the sheet guaranties its
authenticity, another signature on its left margin would be unneccessary; and if they do not guaranty, same signatures,
affixed on another part of same sheet, would add nothing. We cannot assume that the statute regards of such importance
the place where the testator and the witnesses must sign on the sheet that it would consider that their signatures written
on the bottom do not guaranty the authenticity of the sheet but, if repeated on the margin, give sufficient security.
In requiring that each and every page of a will must be numbered correlatively in letters placed on the upper part of the
sheet, it is likewise clear that the object of Act No. 2645 is to know whether any sheet of the will has been removed. But,
when all the dispositive parts of a will are written on one sheet only, the object of the statute disappears because the
removal of this single sheet, although unnumbered, cannot be hidden.
What has been said is also applicable to the attestation clause. Wherefore, without considering whether or not this clause
is an essential part of the will, we hold that in the one accompanying the will in question, the signatures of the testatrix and
of the three witnesses on the margin and the numbering of the pages of the sheet are formalities not required by the
statute. Moreover, referring specially to the signature of the testatrix, we can add that same is not necessary in the
attestation clause because this, as its name implies, appertains only to the witnesses and not to the testator since the
latter does not attest, but executes, the will.
Synthesizing our opinion, we hold that in a will consisting of two sheets the first of which contains all the testamentary
dispositions and is signed at the bottom by the testator and three witnesses and the second contains only the attestation
clause and is signed also at the bottom by the three witnesses, it is not necessary that both sheets be further signed on
their margins by the testator and the witnesses, or be paged.
The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid
substitution of wills and testaments and to guaranty their truth and authenticity. Therefore the laws on this subject should
be interpreted in such a way as to attain these primordal ends. But, on the other hand, also one must not lose sight of the
fact that it is not the object of the law to restrain and curtail the exercise of the right to make a will. So when an
interpretation already given assures such ends, any other interpretation whatsoever, that adds nothing but demands more
requisites entirely unnecessary, useless and frustative of the testator's last will, must be disregarded. lawphil.net
As another ground for this appeal, it is alleged the records do not show that the testarix knew the dialect in which the will
is written. But the circumstance appearing in the will itself that same was executed in the city of Cebu and in the dialect of
this locality where the testatrix was a neighbor is enough, in the absence of any proof to the contrary, to presume that she
knew this dialect in which this will is written.
For the foregoing considerations, the judgment appealed from is hereby affirmed with costs against the appellants. So
ordered.

G.R. No. L-20374

October 11, 1923

In re of Dolores Coronel, deceased.

LORENZO PECSON, applicant-appellee,
vs.
AGUSTIN CORONEL, ET AL., opponents-appellants.
Fisher, DeWitt, Perkins and Brady for appellants.
Ross and Lawrence and Guillermo Lualhati for appellee.

ROMUALDEZ, J.:

On November 28, 1922, the Court of First Instance of Pampanga probated as the last will and testament of Dolores
Coronel, the document Exhibit A, which translated is as follows:
In the name of God, Amen:
I, Dolores Coronel, resident of Betis, Guagua, Pampanga, Philippine Islands, in the full exercise of my
mental faculties, do hereby make my last will and testament, and revoke all former wills by me executed.
I direct and order that my body be buried in conformity with my social standing.
That having no forced heirs, I will all my properties, both movable and immovable, to my nephew, Lorenzo
Pecson, who is married to my niece Angela Coronel, in consideration of the good services with he has
rendered, and is rendering to me with good will and disinterestedness and to my full satisfaction.
I name and appoint my aforesaid nephew, Lorenzo Pecson, executor of all that is willed and ordained in
this my will, without bond. Should he not be able to discharge his duties as such executor for any reason
whatsoever, I name and appoint as substitute executor my grandson Victor Pecson, a native and resident
of the town of Betis, without requiring him to give bond. 1awph!l.net
All my real and paraphernal property as well as my credits for I declare that I have no debts, are specified
in an inventory.
In testimony whereof and as I do not know how to write my name, I have requested Vicente J. Francisco
to write my name at the foot hereof and on the left margin of each of its sheet before me and all the
undersigned witnesses this July 1, 1918.
VICENTE J. FRANCISCO
"For the testatrix Dolores Coronel
The foregoing document was executed and declared by Dolores Coronel to be her last will and testament
in our presence, and as the testatrix does not know how to write her name, she requested Vicente J.
Francisco to sign her name under her express direction in our presence, at the foot, and on the left
margin of each and every sheet, hereof. In testimony whereof, each of us signed these presents in the
presence of others and of the testatrix at the foot hereof and on the margin of each and everyone of the
two sheets of which this document is composed, which are numbered "one" and "two" on the upper part
of the face thereof.
(Sgd.)

"MAXIMO VERGARA

SOTERO DUMAUAL

MARIANO L. CRISOSTOMO
DAMIAN CRISOSTOMO

MARCOS DE LOS SANTOS

PABLO BARTOLOME

MARCOS DE LA CRUZ

On the left margin of the two sheets of the will the following signatures also appear:
Mariano L. Crisostomo, Vicente J. Francisco for the testatrix Dolores Coronel, M. Vergara, Pablo
Bartolome, Sotero Dumaual Crisostomo, Marcos de la Cruz, Marcos de los Santos.
The petitioner for the probate of the will is Lorenzo Pecson, husband of Angela Coronel, who is a niece of the deceased
Dolores Coronel.
The opponents are: Eriberto Coronel, Tito Coronel, Julian Gozum, Cirila Santiago, widow of the deceased Macario
Gozum, in her own behalf and that of her three minor children, Hilarion Coronel, Geronimo Coronel, Maria Coronel and
her husband Eladio Gongco, Juana Bituin, widow of the deceased Hipolito Coronel, in her own behalf and that of her
three children, Generosa, Maria, and Jose, all minors, Rosario Coronel, Agustin Coronel, Filomeno Coronel, Casimiro
Coronel, Alejo Coronel, Maria Coronel, Severina Coronel, Serapia Coronel, Maria Juana de Ocampo, widow of the
deceased Manuel Coronel, Dionisia Coronel, and her husband Pantaleon Gunlao.

The probate of this will is impugned on the following grounds: (a) That the proof does not that the document Exhibit A
above copied contains the last will of Dolores Coronel, and (b) that the attestation clause is not in accordance with the
provisions of section 618 of the Code of Civil Procedure, as amended by Act No. 2645.
These are the two principal questions which are debated in this case and which we will now examine separately.
As to the first, which is the one raised in the first assignment of error, the appellants argue: First, that it was improbable
and exceptional that Dolores Coronel should dispose of her estate, as set forth in the document Exhibit A, her true being
that the same be distributed among her blood relatives; and second, that if such will not expressed in fact, it was due to
extraneous illegal influence.
Let us examine the first point.
The opponents contend that it was not, nor could it be, the will of the testatrix, because it is not natural nor usual that she
should completely exclude her blood relatives from her vast estate, in order to will the same to one who is only a relative
by affinity, there appearing no sufficient motive for such exclusion, inasmuch as until the death of Dolores Coronel, she
maintained very cordial relations with the aforesaid relatives who had helped her in the management and direction of her
lands. It appears, however, from the testimony of Attorney Francisco (page 71, transcript of the stenographic notes) that
Dolores Coronel revealed to him her suspicion against some of her nephews as having been accomplices in a robbery of
which she had been a victim.
As to whether or not Lorenzo Pecson rendered services to Dolores Coronel, the opponents admit that he rendered them
at least from the year 1914, although there is proof showing that he rendered such services long before that time.
The appellants emphasize the fact that family ties in this country are very strongly knit and that the exclusion of relative
one's estate an exceptional case. It is true that ties of relationship in the Philippines are very strong, but we understand
that cases of preterition of relatives from the inheritance are not rare. The liberty to dispose of one's estate by will when
there are no forced heirs is rendered sacred by the civil Code in force in the Philippines since 1889. It is so provided in the
first paragraph of article in the following terms:
Any person who was no forced heirs may dispose by will of all his property or any part of it in favor of any
person qualified to acquire it.
Even ignoring the precedents of this legal precept, the Code embodying it has been in force in the Philippines for more
than a quarter of a century, and for this reason it is not tenable to say that the excercise of the liberty thereby granted is
necessarily exceptional, where it is not shown that the inhabitants of this country whose customs must have been take
into consideration by the legislator in adopting this legal precept, are averse to such a liberty.
As to preference given to Lorenzo Pecson, it is not purely arbitrary, nor a caprice or a whim of the moment. The proof
adduced by this appelle, although contradicted, shows by a preponderance of evidence that besides the services which
the opponents admit had been rendered by him to Dolores Coronel since the year 1914, he had also rendered services
prior to that time and was the administrator and manager of the affairs of said Dolores in the last years of her life. And that
this was not a whim of the moment is shown by the fact that six years before the execution of the will in question, said
Lorenzo Pecson was named and appointed by Dolores Coronel as her sole heir in the document Exhibit B, which,
translated, is as follows:
1. That my present property was acquired by me by inheritance from my parents, but a great part thereof
was acquired by me by my own efforts and exertions;
2. That I have made no inventory of my properties, but they can be seen in the title deeds in my
possession and in the declarations of ownership;
3. That I institute Lorenzo Pecson, married to Angela Coronel, and a known resident of the town, my heir
to succeed to all my properties;
4. That I appoint my said heir, Lorenzo Pecson, as executor, and, in his default, Victor Pecson, a resident
of the same town;

5. That as to my burial and other things connected with the eternal rest of my soul, I leave them to the
sound direction of the aforesaid Lorenzo Pecson;
6. That as I cannot write I requested Martin Pangilinan, a native and resident of this town, to write this will
in accordance with my wishes and precise instructions.
In testimony whereof I had the said Martin Pangilinan write my name and surname, and affixed my mark
between my name and surname, and don Francisco Dumaual, Don Mariano Sunglao, Don Sotero
Dumaual, Don Marcos de la Cruz and Don Martin Pangilinan signed as witnesses, they having been
present at the beginning of, during, and after, the execution of this my last will.
(Sgd.)

"DOLORES CORONEL

(Sgd.)

"MARIANO SUNGLAO
MARCOS DE LA CRUZ
FRANCISCO DUMAUAL
SOTERO DUMAUAL
MARTIN PANGILINAN"

Witnesses:

The appellants find in the testament Exhibit B something to support their contention that the intention of Dolores Coronel
was to institute the said Pecson not as sole beneficiary, but simply as executor and distributor of all her estate among her
heirs, for while Lorenzo Pecson's contention that he was appointed sold beneficiary is based on the fact that he enjoyed
the confidence of Dolores Coronel in 1918 and administered all her property, he did not exclusively have this confidence
and administration in the year 1912. Although such administration and confidence were enjoyed by Pecson always jointly
with others and never exclusively, this fact does not show that the will of the testatrix was to appoint Pecson only as
executor and distributor of her estate among the heirs, nor does it prevent her, the testatrix, from instituting him in 1912 or
1918 as sole beneficiary; nor does it constitute, lastly, a test for determining whether or not such institution in favor of
Pecson was the true will of the testatrix.
We find, therefore, nothing strange in the preterition made by Dolores Coronel of her blood relatives, nor in the
designation of Lorenzo Pecson as her sole beneficiary. Furthermore, although the institution of the beneficiary here would
not seem the most usual and customary, still this would not be null per se.
In the absence of any statutory restriction every person possesses absolute dominion over his property,
and may bestow it upon whomsoever he pleases without regard to natural or legal claim upon his bounty.
If the testator possesses the requisite capacity to make a will, and the disposition of his property is not
affected by fraud of undue influence, the will is not rendered invalid by the fact that it is unnatural,
unreasonable, or unjust. Nothing can prevent the testator from making a will as eccentric, as injudicious,
or as unjust as caprice, frivolity, or revenge can dictate. However, as has already been shown, the
unreasonable or unjustice of a will may be considered on the question of testamentary capacity. (40 Cyc.,
1079.)
The testamentary capacity of Dolores Coronel is not disputed in this case.
Passing to the second question, to wit, whether or not the true last will of Dolores Coronel was expressed in the testament
Exhibit A, we will begin with expounding how the idea of making the aforesaid will here controverted was borne and
carried out.
About the year 1916 or 1917, Dolores showed the document Exhibit B to Attorney Francisco who was then her legal
adviser and who, considering that in order to make the expression of her last will more legally valid, though it necessary
that the statement be prepared in conformity with the laws in force at time of the death of the testatrix, and observing that
the will Exhibit B lacked the extrinsic formalities required by Act No. 2645 enacted after its execution, advised Dolores
Coronel that the will be remade. She followed the advice, and Attorney Francisco, after receiving her instructions, drew
the will Exhibit A in accordance therewith, and brought it to the house of Dolores Coronel for its execution.
Pablo Bartolome read Exhibit A to Dolores Coronel in her presence and that of the witnesses and asked her whether the
will was in accordance with her wishes. Dolores Coronel answer that it was, and requested her attorney, Mr. Francisco, to

sign the will for her, which the attorney accordingly did in the presence of the witnesses, who in turn signed it before the
testatrix and in the presence of each other.
Upon the filing of the motion for a rehearing on the first order allowing the probate of the will, the opponents presented an
affidavit of Pablo Bartolome to the effect that, following instructions of Lorenzo Pecson, he had informed the testatrix that
the contents of the will were that she entrusted Pecson with the distribution of all her property among the relatives of the
said Dolores. But during the new trial Pablo Bartolome, in spite of being present in the court room on the day of the trial,
was not introduced as a witness, without such an omission having been satisfactorily accounted for.
While it is true that the petitioner was bound to present Pablo Bartolome, being one of the witnesses who signed the will,
at the second hearing when the probate was controverted, yet we cannot consider this point against the appellee for this
was not raised in any of the assignments of error made by the appellants. (Art. 20, Rules of the Supreme Court.)
On the other hand, it was incumbent upon the opponents to present Pablo Bartolome to prove before the court the
statement by him in his affidavit, since it was their duty to prove what they alleged, which was that Dolores Coronel had
not understood the true contents of the will Exhibit A. Having suppressed, without explanation, the testimony of Pablo
Bartolome, the presumption is against the opponents and that is, that such a testimony would have been adverse had it
been produced at the hearing of the case before the court. (Sec 334, subsec. 5, Code of Civil Procedure.)
The opponents call our attention to the fourth clause of the document which says: "I name and appoint my aforesaid
nephew, Lorenzo Pecson, executor of all that is willed and ordained in this my will, without bond. Should he not be able to
discharge his duties as such executor for any reason whatsoever, I name and appoint as a substitute executor my
grandson Victor Pecson, resident of the town of Betis, without requiring him to give bond," and contend that this clause is
repugnant to the institution of Lorenzo Pecson as sole beneficiary of all her estate, for if such was the intention of the
testatrix, there would have been no necessity of appointing an executor, nor any reason for designating a substitute in
case that the first one should not be able to discharge his duties, and they perceived in this clause the idea which,
according to them, was not expressed in the document, and which was that Pecson was simply to be a mere executor
entrusted with the distribution to the estate among the relatives of the testatrix, and that should he not be able to do so,
this duty would devolved upon his substitutes.
But it is not the sole duty of an executor to distribute the estate, which in estate succession, such as the instant case, has
to be distributed with the intervention of the court. All executor has, besides, other duties and general and special powers
intended for the preservation, defense, and liquidation of the estate so long as the same has not reached, by order of the
court, the hands of those entitled thereto.
The fact that Dolores Coronel foresaw the necessity of an executor does not imply a negation of her desire to will all her
estate to Lorenzo Pecson. It is to be noted, furthermore, that in the will, it was ordered that her body be given a burial in
accordance with her social standing and she had a perfect right to designate a person who should see to it that this order
was complied with. One of the functions of an executor is the fulfillment of what is ordained in the will.
It is argued that the will of the testatrix was to will her estate to her blood relatives, for such was the promise made to
Maria Coronel, whom Rosario Coronel tends to corroborate. We do not find such a promise to have been sufficiently
proven, and much less to have been seriously made and coupled with a positive intention on the part of Dolores Coronel
to fulfill the same. In the absence of sufficient proof of fraud, or undue influence, we cannot take such a promise into
account, for even if such a promise was in fact made, Dolores Coronel could retract or forget it afterwards and dispose of
her estate as she pleased. Wills themselves, which contain more than mere promises, are essentially revocable.
It is said that the true will of Dolores Coronel not expressed in the will can be inferred from the phrase used by Jose M.
Reyes in his deposition when speaking of the purpose for which Lorenzo Pecson was to receive the estate, to wit:
in order that the latter might dispose of the estate in the most appropriate manner
Weight is given to this phrase from the circumstance that its author was requested by Attorney Francisco to explain the
contents of Exhibit B and had acted as interpreter between Dolores Coronel and Attorney Francisco at their interviews
previous to the preparation of Exhibit A, and had translated into the Pampango dialect this last document, and, lastly, was
present at the execution of the will in question.
The disputed phrase "in order that the latter might dispose of the estate in the most appropriate manner" was used by the
witness Reyes while sick in a hospital and testifying in the course of the taking of his deposition.

The appellants interpret the expression "dispose in the most appropriate manner" as meaning to say "distribute it among
the heirs." Limiting ourselves to its meaning, the expression is a broad one, for the disposition may be effected in several
and various ways, which may not necessarily be a "distribution among the heirs," and still be a "disposition in the most
appropriate manner." "To dispose" is not the same as "to distribute."
To judge correctly the import of this phrase, the circumstances under which it was used must be taken into account in this
particular instance. The witness Reyes, the author of the phrase, was not expressing his own original ideas when he used
it, but was translating into Spanish what Dolores Coronel had told him. According to the facts, the said witness is not a
Spaniard, that is to say, the Spanish language is not his native tongue, but, perhaps, the Pampango dialect. It is an
admitted fact based on reason and experience that when a person translates from one language to another, it is easier for
him to express with precision and accuracy when the version is from a foreign language to a native one than vice-versa.
The witness Reyes translated from the Pampango dialect, which must be more familiar to him, to the Spanish language
which is not his own tongue. And judging from the language used by him during his testimony in this case, it cannot be
said that this witness masters the Spanish language. Thus is explained the fact that when asked to give the reason for the
appointment of an executor in the will, he should say at the morning session that "Dolores Coronel did appoint Don
Lorenzo Pecson and in his default, Victor Pecson, to act during her lifetime, but not after he death," which was explained
at the afternoon session by saying "that Dolores Coronel did appoint Don Lorenzo Pecson executor of all her estate
during his lifetime and that in his default, either through death or incapacity, Mr. Victor Pecson was appointed
executor." Taking into account all the circumstances of this witness, there is ground to attribute his inaccuracy as to the
discharge of the duties of an executor, not to ignorance of the elementary rule of law on the matter, for the practice of
which he was qualified, but to a non-mastery of the Spanish language. We find in this detail of translation made by the
witness Reyes no sufficient reason to believe that the will expressed by Dolores Coronel at the said interview with
Attorney Francisco was to appoint Lorenzo Pecson executor and mere distributor of her estate among her heirs.
As to whether or not the burden of proof was on the petitioner to establish that he was the sole legatee to the exclusion of
the relatives of Dolores Coronel, we understand that it was not his duty to show the reasons which the testatrix may have
had for excluding her relatives from her estate, giving preference to him. His duty was to prove that the will was voluntary
and authentic and he, who alleges that the estate was willed to another, has the burden of proving his allegation.
Attorney Francisco is charged with having employed improper means of making Lorenzo Pecson appear in the will as sole
beneficiary. However, after an examination of all the proceedings had, we cannot find anything in the behavior of this
lawyer, relative to the preparation and execution of the will, that would justify an unfavorable conclusion as to his personal
and professional conduct, nor that he should harbor any wrongful or fraudulent purpose.
We find nothing censurable in his conduct in advising Dolores Coronel to make a new will other than the last one, Exhibit
B (in the drawing of which he does not appear to her intervened), so that the instrument might be executed with all the
new formalities required by the laws then in force; nor in the preparation of the new will substantially in accordance with
the old one; nor in the selection of attesting witnesses who were persons other than the relatives of Dolores Coronel.
Knowing, as he did, that Dolores was excluding her blood relatives from the inheritance, in spite of her having been asked
by him whether their exclusion was due to a mere inadvertence, there is a satisfactory explanation, compatible with
honorable conduct, why said attorney should prescind from such relatives in the attesting of the will, to the end that no
obstacle be placed in the way to the probating thereof.
The fact that this attorney should presume that Dolores was to ask him to sign the will for her and that he should prepare it
containing this detail is not in itself fraudulent. There was in this case reason so to presume, and it appears that he asked
her, through Pablo Bartolome, whom she wanted to sign the document in her stead.
No imputation can be made to this attorney of any interest in favoring Lorenzo Pecson in the will, because the latter was
already his client at the execution of said will. Attorney Francisco denied this fact, which we cannot consider proven after
examining the evidence.
The conduct observed by this attorney after the death of Dolores Coronel in connection with the attempted arrangement
between Lorenzo Pecson and the opponents, does not, in our opinion, constitute any data leading to the conclusion that
an heir different from the true one intended by the testatrix should have been fraudulently made to appear instituted in the
will exhibit A. His attitude towards the opponents, as can be gathered from the proceedings and especially from his letter
Exhibit D, does not show any perverse or fraudulent intent, but rather a conciliatory purpose. It is said that such a step
was well calculated to prevent every possible opposition to the probate of the will. Even admitting that one of his objects in
entering into such negotiations was to avoid every possible to the probate of the will, such object is not incompatible with
good faith, nor does it necessarily justify the inference that the heir instituted in the instrument was not the one whom the
testatrix wanted appointed.

The appellants find rather suspicious the interest shown by the said attorney in trying to persuade Lorenzo Pecson to give
them some share of the estate. These negotiations were not carried out by the attorney out of his own initiative, but at the
instance of the same opponent, Agustin Coronel, made by the latter in his own behalf and that of his coopponents.
As to Lorenzo Pecson, we do not find in the record sufficient proof to believe that he should have tried, through fraud or
any undue influence, to frustrate the alleged intention of the testatrix to leave her estate to her blood relatives. The
opponents insinuate that Lorenzo Pecson employed Attorney Francisco to carry out his reproachable designs, but such
depraved instrumentality was not proven, nor was it shown that said lawyer, or Lorenzo Pecson, should have contrived or
put into execution any condemnable plan, nor that both should have conspired for illegal purposes at the time of the
preparation and execution of the will Exhibit A.
Although Norberto Paras testified having heard, when the will was being read to Dolores Coronel, the provision whereby
the estate was ordered distributed among the heirs, the preponderance of the evidence is to the effect that said Norberto
Paras was not present at such reading of the will. Appellant do not insist on the probative force of the testimony of this
witness, and do not oppose its being stricken out.
The data furnished by the case do not show, to our mind, that Dolores Coronel should have had the intention of giving her
estate to her blood relatives instead of to Lorenzo Pecson at the time of the execution of the will Exhibit A, nor that fraud
or whatever other illegal cause or undue influence should have intervened in the execution of said testament. Neither
fraud nor evil is presumed and the record does not show either.
Turning to the second assignment of error, which is made to consist in the will having been probated in spite of the fact
that the attestation clause was not in conformity with the provision of section 618 of the Code of Civil Procedure, as
amended by Act No. 2645, let us examine the tenor of such clause which literally is as follows:
The foregoing document was executed and declared by Dolores Coronel to be her last will testament in
our presence, and as testatrix does not know how to write her name, she requested Vicente J. Francisco
to sign her name under her express direction in our presence at the foot and on the left margin of each
and every sheet hereof. In testimony whereof, each of us signed these presents in the presence of others
of the testatrix at the foot hereof and on the margin of each and everyone of the two pages of which this
document is composed. These sheets are numbered correlatively with the words "one and "two on the
upper part of the face thereof.
(Sgd.)
"Maximo Vergara,
Sotero Dumaual,
Marcos de los Santos,
Pablo Bartolome,
Marcos de la Cruz,
Damian Crisostomo."

Mariano L. Crisostomo,

Appellants remark that it is not stated in this clause that the will was signed by the witnesses in the presence of the
testatrix and of each other, as required by section 618 of the Code of Civil Procedure, as amended, which on this
particular point provides the following:
The attestation shall state the number of sheets or pages used, upon which the will is written, and the fact
that the testator signed the will and every page thereof, or caused some other person to write his name,
under his express direction, in the presence of three witnesses, and the latter witnessed and signed the
will and all pages thereof in the presence of the testator and of each other.
Stress is laid on the phrase used in the attestation clause above copied, to wit:
each of us signed in the presence of others.
Two interpretations can absolutely be given here to the expression "of others." One, that insinuated by the appellants,
namely, that it is equivalent to "of other persons," and the other, that contended by the appellee, to wit, that the phrase
should be held to mean "of the others," the article "the" having inadvertently been omitted.
Should the first interpretation prevail and "other persons" be taken to mean persons different from the attesting witnesses,
then one of the solemnities required by law would be lacking. Should the second be adopted and "of others" construed as
meaning the other witnesses to the will, then the law would have been complied with in this respect.
Including the concomitant words, the controverted phrase results thus: "each of us signed these presents in the presence
of others and of the testatrix."

If we should omit the words "of others and," the expression would be reduced to "each of us signed these presents in the
presence of the testatrix," and the statement that the witnesses signed each in the presence of the others would be
lacking. But as a matter of fact, these words "of others and" are present. Then, what for are they there? Is it to say that the
witnesses signed in the presence of other persons foreign to the execution of the will, which is completely useless and to
no purpose in the case, or was it for some useful, rational, necessary object, such as that of making it appear that the
witnesses signed the will each in the presence of the others? The first theory presupposes that the one who drew the will,
who is Attorney Francisco, was an unreasonable man, which is an inadmissible hypothesis, being repugnant to the facts
shown by the record. The second theory is the most obvious, logical and reasonable under the circumstances. It is true
that the expression proved to be deficient. The deficiency may have been caused by the drawer of the will or by the typist.
If by the typist, then it must be presumed to have been merely accidental. If by the drawer, it is explainable taking into
account that Spanish is not only not the native language of the Filipinos, who, in general, still speak until nowadays their
own dialects, but also that such language is not even the only official language since several years ago.
In Re will of Abangan (40 Phil., 476), this court said:
The object of the solemnities surrounding the execution of wills is to close the door against bad faith and
fraud, to avoid substitution of wills and testaments and to guarantee their truth and authenticity. Therefore
the laws on this subject should be interpreted in such a way as to attain these primordial ends. But, on the
other hand, also one must not lose sight of the fact that it is not the object of the law to restrain and curtail
the exercise of the right to make a will. So when an interpretation already given assures such ends, any
other interpretation whatsoever, that adds nothing but demands more requisite entirely unnecesary,
useless and frustrative of the testator's last will, must be disregarded.
We believe it to be more reasonable to construe the disputed phrase "of others" as meaning "of the other witnesses," and
that a grammatical or clerical error was committed consisting in the omission of the article "the".
Grammatical or clerical errors are not usually considered of vital importance when the intention is manifest in the will.
The court may correct clerical mistakes in writing, and disregard technical rules of grammar as to the
construction of the language of the will when it becomes necessary for it to do so in order to effectuate the
testators manifest intention as ascertained from the context of the will. But unless a different construction
is so required the ordinary rules of grammar should be adhered to in construing the will. (40 Cyc., 1404).
And we understand that in the present case the interpretation we adopt is imperative, being the most adequate and
reasonable.
The case of In the matter of the estate of Geronima Uy Coque (43 Phil., 405), decided by this court and invoked by the
appellants, refers so far as pertinent to the point herein at issue, to an attestation clause wherein the statement that the
witnesses signed the will in the presence of each other is totally absent. In the case at bar, there is the expression "in the
presence of others" whose reasonable interpretation is, as we have said, "in the presence of the other witnesses." We do
not find any party between the present case and that of Re Estate of Geronima Uy Coque above cited.
Finally, we will take up the question submitted by the opponents as to the alleged insufficiency of the evidence to show
that the attesting witnesses Damian Crisostomo and Sotero Dumaual were present at the execution of the will in
controversy. Although this point is raised in the first assignment of error made by the appellants, and not in the second, it
is discussed in this place because it refers to the very fact of attestation. However, we do not believe it necessary to
analyze in detail the evidence of both parties on this particular point. The evidence leads us to the conclusion that the two
witnesses aforementioned were present at the execution and signing of the will. Such is also the conclusion of the trial
judge who, in this respect, states the following, in his decision:
As to the question of whether or not the testatrix and witnesses signed the document Exhibit A in accordance with the
provisions of law on the matter, that is, whether or not the testatrix signed the will, or caused it to be signed, in the
presence of the witnesses, and the latter in turn signed in her presence and that of each other, the court, after observing
the demeanor of the witnesses for both parties, is of the opinion that those for the petitioner spoke the truth. It is neither
probable nor likely that a man versed in the law, such as Attorney Francisco, who was present at the execution of the will
in question, and to whose conscientiousness in the matter of compliance with all the extrinsic formalities of the execution
of a will, and to nothing else, was due the fact that the testatrix had cancelled her former will (Exhibit B) and had new one
(Exhibit A) prepared and executed, should have consented the omission of formality compliance with which would have
required little or no effort; namely, that of seeing to it that the testatrix and the attesting witnesses were all present when

their respective signatures were affixed to the will." And the record does not furnish us sufficient ground for deviating from
the line reasoning and findings of the trial judge.
In conclusion we hold that the assignments of error made by the appellants are not supported by the evidence of record.
The judgment appealed from if affirmed with costs against the appellants. So ordered.
Araullo, C.J., Johnson, Street, Malcolm, Avancea, Villamor and Johns, JJ., concur.

****Location of signatures
G.R. No. 15566
September 14, 1921
EUTIQUIA AVERA, petitioner-appellee,
vs.
MARINO GARCIA, and JUAN RODRIGUEZ, as guardian of the minors Cesar Garcia and Jose Garcia,objectorsappellants.
Dionisio Villanueva for appellants.
Marcelino Lontok for appellee.
STREET, J.:
In proceedings in the court below, instituted by Eutiquia Avera for probate of the will of one Esteban Garcia, contest was
made by Marino Garcia and Juan Rodriguez, the latter in the capacity of guardian for the minors Jose Garcia and Cesar
Garcia. Upon the date appointed for the hearing, the proponent of the will introduced one of the three attesting witnesses
who testified with details not necessary to be here specified that the will was executed with all necessary external
formalities, and that the testator was at the time in full possession of disposing faculties. Upon the latter point the witness
was corroborated by the person who wrote the will at the request of the testator. Two of the attesting witnesses were not
introduced, nor was their absence accounted for by the proponent of the will.
When the proponent rested the attorney for the opposition introduced a single witness whose testimony tended to show in
a vague and indecisive manner that at the time the will was made the testator was so debilitated as to be unable to
comprehend what he was about.
After the cause had been submitted for determination upon the proof thus presented, the trial judge found that the testator
at the time of the making of the will was of sound mind and disposing memory and that the will had been properly
executed. He accordingly admitted the will to probate.
From this judgment an appeal was taken in behalf of the persons contesting the will, and the only errors here assigned
have reference to the two following points, namely, first, whether a will can be admitted to probate, where opposition is
made, upon the proof of a single attesting witness, without producing or accounting for the absence of the other two; and,
secondly, whether the will in question is rendered invalid by reason of the fact that the signature of the testator and of the
three attesting witnesses are written on the right margin of each page of the will instead of the left margin.
Upon the first point, while it is undoubtedly true that an uncontested will bay be proved by the testimony of only one of the
three attesting witnesses, nevertheless in Cabang vs. Delfinado (34 Phil., 291), this court declared after an elaborate
examination of the American and English authorities that when a contest is instituted, all of the attesting witnesses must
be examined, if alive and within reach of the process of the court.
In the present case no explanation was made at the trial as to why all three of the attesting witnesses were not produced,
but the probable reason is found in the fact that, although the petition for the probate of this will had been pending from
December 21, 1917, until the date set for the hearing, which was April 5, 1919, no formal contest was entered until the
very day set for the hearing; and it is probable that the attorney for the proponent, believing in good faith the probate
would not be contested, repaired to the court with only one of the three attesting witnesses at hand, and upon finding that

the will was contested, incautiously permitted the case to go to proof without asking for a postponement of the trial in
order that he might produce all the attesting witnesses.
Although this circumstance may explain why the three witnesses were not produced, it does not in itself supply any basis
for changing the rule expounded in the case above referred to; and were it not for a fact now to be mentioned, this court
would probably be compelled to reverse this case on the ground that the execution of the will had not been proved by a
sufficient number of attesting witnesses.
It appears, however, that this point was not raised by the appellant in the lower court either upon the submission of the
cause for determination in that court or upon the occasion of the filing of the motion for a new trial. Accordingly it is
insisted for the appellee that this question cannot now be raised for the first time in this court. We believe this point is well
taken, and the first assignment of error must be declared not be well taken. This exact question has been decided by the
Supreme Court of California adversely to the contention of the appellant, and we see no reason why the same rule of
practice should not be observed by us. (Estate of McCarty, 58 Cal., 335, 337.)
There are at least two reason why the appellate tribunals are disinclined to permit certain questions to be raised for the
first time in the second instance. In the first place it eliminates the judicial criterion of the Court of First Instance upon the
point there presented and makes the appellate court in effect a court of first instance with reference to that point, unless
the case is remanded for a new trial. In the second place, it permits, if it does not encourage, attorneys to trifle with the
administration of justice by concealing from the trial court and from their opponent the actual point upon which reliance is
placed, while they are engaged in other discussions more simulated than real. These considerations are, we think,
decisive.
In ruling upon the point above presented we do not wish to be understood as laying down any hard and fast rule that
would prove an embarrassment to this court in the administration of justice in the future. In one way or another we are
constantly here considering aspects of cases and applying doctrines which have escaped the attention of all persons
concerned in the litigation below; and this is necessary if this court is to contribute the part due from it in the correct
decision of the cases brought before it. What we mean to declare is that when we believe that substantial justice has been
done in the Court of First Instance, and the point relied on for reversal in this court appears to be one which ought
properly to have been presented in that court, we will in the exercise of a sound discretion ignore such question relates a
defect which might have been cured in the Court of First Instance if attention had been called to it there. In the present
case, if the appellant had raised this question in the lower court, either at the hearing or upon a motion for a new trial, that
court would have had the power, and it would have been is duty, considering the tardy institution of the contest, to have
granted a new trial in order that all the witnesses to the will might be brought into court. But instead of thus calling the
error to the attention of the court and his adversary, the point is first raised by the appellant in this court. We hold that this
is too late.
Properly understood, the case of Cabang vs. Delfinado, supra, contains nothing inconsistent with the ruling we now make,
for it appears from the opinion in that case that the proponent of the will had obtained an order for a republication and new
trial for the avowed purpose of presenting the two additional attesting witnesses who had not been previously examined,
but nevertheless subsequently failed without any apparent reason to take their testimony. Both parties in that case were
therefore fully apprised that the question of the number of witnesses necessary to prove the will was in issue in the lower
court.
The second point involved in this case is whether, under section 618 of the Code of Civil Procedure, as amended by Act
No. 2645, it is essential to the validity of a will in this jurisdiction that the names of the testator and the instrumental
witnesses should be written on the left margin of each page, as required in said Act, and not upon the right margin, as in
the will now before us; and upon this we are of the opinion that the will in question is valid. It is true that the statute says
that the testator and the instrumental witnesses shall sign their names on the left margin of each and every page; and it is
undeniable that the general doctrine is to the effect that all statutory requirements as to the execution of wills must be fully
complied with. The same doctrine is also deducible from cases heretofore decided by this court.
Still some details at times creep into legislative enactments which are so trivial it would be absurd to suppose that the
Legislature could have attached any decisive importance to them. The provision to the effect that the signatures of the
testator and witnesses shall be written on the left margin of each page rather than on the right margin seems to be
this character. So far as concerns the authentication of the will, and of every part thereof, it can make no possible
difference whether the names appear on the left or no the right margin, provided they are on one or the other. In

Caraig vs. Tatlonghari (R. G. No. 12558, decided March 23, 1918, not reported), this court declared a will void which was
totally lacking in the signatures required to be written on its several pages; and in the case of Re estate of Saguinsin (41
Phil., 875), a will was likewise declared void which contained the necessary signatures on the margin of each leaf ( folio),
but not in the margin of each page containing written matter.
The instrument now before us contains the necessary signatures on every page, and the only point of deviation from the
requirement of the statute is that these signatures appear in the right margin instead of the left. By the mode of signing
adopted every page and provision of the will is authenticated and guarded from possible alteration in exactly the same
degree that it would have been protected by being signed in the left margin; and the resources of casuistry could be
exhausted without discovering the slightest difference between the consequences of affixing the signatures in one margin
or the other.
The same could not be said of a case like that of Estate of Saguinsin, supra, where only the leaves, or alternate pages,
were signed and not each written page; for as observed in that case by our late lamented Chief Justice, it was possible
that in the will as there originally executed by the testratrix only the alternative pages had been used, leaving blanks on
the reverse sides, which conceivably might have been filled in subsequently.
The controlling considerations on the point now before us were well stated In Re will of Abangan (40 Phil., 476, 479),
where the court, speaking through Mr. Justice Avancea, in a case where the signatures were placed at the bottom of the
page and not in the margin, said:
The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to
avoid substitution o will and testaments and to guarantee their truth and authenticity. Therefore the laws on this
subject should be interpreted in such a way as to attain these primordial ends. But, on the other hand, also one
must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to
make a will. So when an interpretation already given assures such ends, any other interpretation whatsoever, that
adds nothing but demands more requisites entirely unnecessary, useless and frustrative of the testator's last will,
must be disregarded.
In the case before us, where ingenuity could not suggest any possible prejudice to any person, as attendant upon the
actual deviation from the letter of the law, such deviation must be considered too trivial to invalidate the instrument.
It results that the legal errors assigned are not sustainable, and the judgment appealed from will be affirmed. It is so
ordered, with costs against the appellants.

***Numbering of Pages
G.R. No. L-17304

May 22, 1922

In re will of Maria Roque y Paraiso, deceased.

CEFERINO ALDABA, petitioner-appellee,
vs.
LUDOVICO ROQUE, opponent-appellant.
Lucero and Tengo for appellant.
Vicente Platon for appellee.
VILLAMOR, J.:
It appears from the record of the case that on July 9, 1918, Maria Roque y Paraiso, the widow of Bruno Valenzuela,
resident of the barrio of Mambog, municipality of Malolos, Province of Bulacan, executed her last will and testament in the
Tagalog dialect with the help of Vicente Platon and in the presence of three witnesses who signed the attestation clause

and each of the four pages of the testament. Maria Roque died on December 3, 1919, and when her will was filed in court
for probate, it was contested by Ludovico Roque on the ground that it had not been prepared nor executed in conformity
with the requirements and solemnities prescribed by law.
After due proceedings had been had, the Court of First Instance of Bulacan by its decision rendered on February 27th of
the following year, pronounced the testament in question valid, and ordered its probate, appointing Ceferino Aldaba as the
administrator of the estate.
The errors assigned by the appellant are two, to wit: "That each and every folio of the said testament is not paged
correlatively in letter," and "that the said will lacks the attestation clause required by law."
We have examined document Exhibit 4 which is the will in question and we find at the end thereof the following in Tagalog
which translated into English reads:
This document expresses my last and spontaneous will, and is my last will and testament, which was drawn by
the lawyer, Don Vicente Platon, at my direction, and everything contained in this testament has been ordained
and directed by me to said Vicente Platon in order that it might be embodied in this testament, and after this
testament has been drawn up, I directed him to read it so that I might hear all its contents, and I have heard and
understood all the contents of this document which is my last will, wherefore, and not knowing how to write, I have
requested Don Vicente Platon to write and sign my name in my stead hereon; I declare that this testament is
composed of four sheets, actually used, that the sheets are paged with the letter A, B, C, and d, and above my
name I have placed the thumb mark of my right hand in the presence of the subscribing witnesses, and that all the
witnesses have signed in my presence and of each other here at Malolos, Bulacan, this 9th day of the month of
July, 1918; and I also declare that at my request Don Vicente Platon has written my name on the left margin of all
pages of this testament, in the presence of the witnesses, and all the witnesses have also signed all the pages of
this testament on the left margin in my presence and that of each other.
X (Her thumb mark)
MARIA ROQUE Y PARAISO,
Per VICENTE PLATON.
(Sgd.) REGINO E. MENDOZA,
Witness.
(Sgd.) IGNACIO ANIAG,
Witness.
(Sgd.) CEFERINO ALDABA.
Witness.
In reality, it appears that it is the testatrix who makes the declaration about the points contained in the above described
paragraph; however, as the witnesses, together with the testatrix, have signed the said declaration, we are of the opinion
and so hold that the words above quoted of the testament constitute a sufficient compliance with the requirements of
section 1 of Act No. 2645 which provides that:
The attestation shall state the number of sheets or pages used, upon which the will is written, and the fact that the
testator signed the will and every page thereof, or caused some other person to write his name, under his express
direction, in the presence of three witnesses, and the latter witnessed and signed the will and all the pages thereof
in the presence of the testator and of each other.
In regard to the other assignment of error, to wit, that each of the folios of the said testament is not paged correlatively in
letters "one." "two," "three," etc., but only with the letters A, B, C, etc., we are of the opinion that this method of indicating
the paging of the testament is a compliance with the spirit of the law, since either one of the two ways above-mentioned
indicates the correlation of the pages and serves to prevent the loss of any of them. It might be said that the object of the
law in requiring that the paging be made in letters is to make falsification more difficult, but it should be noted that since all
the pages of the testament are signed at the margin by the testatrix and the witnesses, the difficulty of forging the
signatures in either case remains the same. In other words the more or less degree of facility to imitate the writing of the

letters A, B, C, etc., does not make for the easiness to forge the signature. And as in the present case there exists the
guaranty of the authenticity of the testament, consisting in the signatures on the left marging of the testament and the
paging thereof as declared in the attestation clause, the holding of this court in Abangan vs. Abangan (40 Phil, 476), might
as well be repeated:
The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to
avoid substitution of wills and testaments and to guarantee their truth and authenticity. Therefore the laws on this
subject should be interpreted in such a way as to attain these primordial ends. But, on the other hand, also one
must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to
make a will. So when an interpretation already given assures such ends, any other interpretation whatsoever, that
adds nothing but demands more requisites entirely unnecesary, useless, and frustrative of the testator's last will,
must be disregarded.
In that case the testament was written on one page, and the attestation clause on another. Neither one of these pages
was numbered in any way; and it was held:
In a will consisting of two sheets the first of which contains all the testamentary dispositions and is signed at the
bottom by the testator and three witnesses and the second contains only the attestation clause and is signed also
at the bottom by the three witnesses, it is not necessary that both sheets be further signed on their margings by
the testator and the witnesses, or be paged.
This means that, according to the particular case, the omission of paging does not necessarily render the testament
invalid.
The law provides that the numbering of the pages should be in letters placed on the upper part of the sheet, but if the
paging should be place din the lower part, would the testament be void for his sole reason? We believe not. The law also
provides that the testator and the witnesses must sign the left margin of each of the sheets of the testament; but if they
should sign on the right margin, would this fact also annul the testament? Evidently not. This court has already held
in Avera vs. Garcia and Rodriguez (42 Phil., 145):lvvph1n+
It is true that the statute says that the testator and the instrumental witnesses shall sign their names on the left
margin of each and every page; and it is undeniable that the general doctrine is to the effect that all statutory
requirements as to the execution of wills must be fully complied with. The same doctrine is also deducible from
cases heretofore decided by this court
Still some details at times creep into legislative enactments which are so trivial that it would be absurd to suppose
that the Legislature could have attached any decisive importance to them. The provision to the effect that the
signatures of the testator and witnesses shall be written on the left margin of each page rather than on the right
margin seems to be of this character. So far as concerns the authentication of the will, and of every part
thereof, it can make no possible different whether the names appear on the left or on the right margin, provided
they are on one or the other. In Caraig vs. Tatlonghari (R. G. No. 12558, decided March 23, 1918, not reported),
this court declared a will void which was totally lacking in the signatures required to be written on its several
pages; and in the case of Re estate of Saguinsin (41 Phil., 875), a will was likewise declared void which contained
the necessary signature on the margin of each left (folio), but not on the margin of each page containing written
matter.
We do not desire to intimate that the numbering in letters is a requisite of no importance. But since its principal object is to
give the correlation of the pages, we hold that this object may be attained by writing "one." "two," "three," etc., well as by
writing A, B, C, etc. Following, therefore, the view maintained by this court in the case ofAbangan vs. Abangan, supra, as
regards the appreciation of the solemnities of a testament, we decide that the judgment appealed from must be, as is
hereby, affirmed with costs against the appellant. So ordered.
G.R. No. L-1787

August 27, 1948

Testacy of Sixto Lopez. JOSE S. LOPEZ, petitioner-appellee,

vs.
AGUSTIN LIBORO, oppositor-appellant.
Tirona, Gutierrez and Adorable for appellant.
Ramon Diokno for appellee.
TUASON, J.:
In the Court of First Instance of Batangas the appellant opposed unsuccessfully the probate of what purports to be the last
will and testament (Exhibit A) of Don Sixto Lopez, who died at the age of 83 in Balayan, Batangas, on March 3, 1947,
almost six months after the document in question was executed. In the court below, the present appellant specified five
grounds for his opposition, to wit: (1) that the deceased never executed the alleged will; (2) that his signature appearing in
said will was a forgery; (3) that at the time of the execution of the will, he was wanting in testamentary as well as mental
capacity due to advanced age; (4) that, if he did ever execute said will, it was not executed and attested as required by
law, and one of the alleged instrumental witnesses was incapacitated to act as such; and it was procured by duress,
influence of fear and threats and undue and improper pressure and influence on the part of the beneficiaries instituted
therein, principally the testator's sister, Clemencia Lopez, and the herein proponent, Jose S. Lopez; and (5) that the
signature of the testator was procured by fraud or trick.
In this instance only one of these objections is reiterated, formulated in these words: "That the court a quo erred in holding
that the document Exhibit "A" was executed in all particulars as required by law." To this objection is added the alleged
error of the court "in allowing the petitioner to introduce evidence that Exhibit "A" was written in a language known to the
decedent after petitioner rested his case and over the vigorous objection of the oppositor.
The will in question comprises two pages, each of which is written on one side of a separate sheet. The first sheet is not
paged either in letters or in Arabic numerals. This, the appellant believes, is a fatal defect.
The purpose of the law in prescribing the paging of wills is guard against fraud, and to afford means of preventing the
substitution or of defecting the loss of any of its pages. (Abangan vs. Abangan, 40 Phil., 476.) In the present case, the
omission to put a page number on the first sheet, if that be necessary, is supplied by other forms of identification more
trustworthy than the conventional numerical words or characters. The unnumbered page is clearly identified as the first
page by the internal sense of its contents considered in relation to the contents of the second page. By their meaning and
coherence, the first and second lines on the second page are undeniably a continuation of the last sentence of the
testament, before the attestation clause, which starts at the bottom of the preceding page. Furthermore, the unnumbered
page contains the caption "TESTAMENTO," the invocation of the Almighty, and a recital that the testator was in full use of
his testamentary faculty, all of which, in the logical order of sequence, precede the direction for the disposition of the
marker's property. Again, as page two contains only the two lines above mentioned, the attestation clause, the mark of the
testator and the signatures of the witnesses, the other sheet can not by any possibility be taken for other than page
one. Abangan vs. Abangan,supra, and Fernandez vs. Vergel de Dios, 46 Phil., 922 are decisive of this issue.
Although not falling within the purview and scope of the first assignment of error, the matter of the credibility of the
witnesses is assailed under this heading. On the merits we do not believe that the appellant's contention deserves serious
consideration. Such contradictions in the testimony of the instrumental witnesses as are set out in the appellant's brief are
incidents not all of which every one of the witnesses can be supposed to have perceived, or to recall in the same order in
which they occurred.
Everyday life and the result of investigations made in the field of experimental psychology show that the
contradictions of witnesses generally occur in the details of a certain incident, after a long series of questioning,
and far from being an evidence of falsehood constitute a demonstration of good faith. Inasmuch as not all those
who witness an incident are impressed in like manner, it is but natural that in relating their impressions they
should not agree in the minor details; hence, the contradictions in their testimony. (People vs. Limbo, 49 Phil., 99.)
The testator affixed his thumbmark to the instrument instead of signing his name. The reason for this was that the testator
was suffering from "partial paralysis." While another in testator's place might have directed someone else to sign for him,
as appellant contends should have been done, there is nothing curious or suspicious in the fact that the testator chose the

use of mark as the means of authenticating his will. It was a matter of taste or preference. Both ways are good. A statute
requiring a will to be "signed" is satisfied if the signature is made by the testator's mark. (De Gala vs. Gonzales and Ona,
53 Phil., 108; 28 R. C. L., 117.)
With reference to the second assignment of error, we do not share the opinion that the trial court communicated an abuse
of discretion in allowing the appellant to offer evidence to prove knowledge of Spanish by the testator, the language in
which the will is drawn, after the petitioner had rested his case and after the opponent had moved for dismissal of the
petition on the ground of insufficiency of evidence. It is within the discretion of the court whether or not to admit further
evidence after the party offering the evidence has rested, and this discretion will not be reviewed except where it has
clearly been abused. (64 C. J., 160.) More, it is within the sound discretion of the court whether or not it will allow the case
to be reopened for the further introduction of evidence after a motion or request for a nonsuit, or a demurrer to the
evidence, and the case may be reopened after the court has announced its intention as to its ruling on the request,
motion, or demurrer, or has granted it or has denied the same, or after the motion has been granted, if the order has not
been written, or entered upon the minutes or signed. (64 C. J., 164.)
In this jurisdiction this rule has been followed. After the parties have produced their respective direct proofs, they are
allowed to offer rebutting evidence only, but, it has been held, the court, for good reasons, in the furtherance of justice,
may permit them to offer evidence upon their original case, and its ruling will not be disturbed in the appellate court where
no abuse of discretion appears. (Siuliong and Co. vs. Ylagan, 43 Phil., 393; U. S. vs. Alviar, 36 Phil., 804.) So, generally,
additional evidence is allowed when it is newly discovered, or where it has been omitted through inadvertence or mistake,
or where the purpose of the evidence is to the evidence is to correct evidence previously offered. (I Moran's Comments on
the Rules of Court, 2d ed., 545; 64 C. J., 160-163.) The omission to present evidence on the testator's knowledge of
Spanish had not been deliberate. It was due to a misapprehension or oversight.
Although alien to the second assignment of error, the appellant impugns the will for its silence on the testator's
understanding of the language used in the testament. There is no statutory requirement that such knowledge be expressly
stated in the will itself. It is a matter that may be established by proof aliunde. This Court so impliedly ruled in Gonzales
vs. Laurel, 46 Phil., 781, in which the probate of a will written in Tagalog was ordered although it did not say that the
testator knew that idiom. In fact, there was not even extraneous proof on the subject other than the fact that the testator
resided in a Tagalog region, from which the court said "a presumption arises that said Maria Tapia knew the Tagalog
dialect.
The order of the lower court ordering the probate of the last will and testament of Don Sixto Lopez is affirmed, with costs.

G.R. No. L-21755

December 29, 1924

In the matter of the testate estate of Antonio Mojal, deceased. FILOMENA NAYVE, petitioner-appellee,
vs.
LEONA MOJAL and LUCIANA AGUILAR, opponents-appellants.
Manuel M. Calleja for appellants.
Felix U. Calleja for appellee.

ROMUALDEZ, J.:
This is a proceeding for the probate of the will of the deceased Antonio Mojal instituted by his surviving spouse, Filomena
Nayve. The probate is opposed by Leona Mojal and Luciana Aguilar, sister and niece, respectively, of the deceased.
The Court of First Instance of Albay, which tried the case, overruled the objections to the will, and ordered the probate
thereof, holding that the document in controversy was the last will and testament of Antonio Mojal, executed in
accordance with law. From this judgment the opponents appeal, assigning error to the decree of the court allowing the will
to probate and overruling their opposition.

The will in question, Exhibit A, is composed of four sheets with written matter on only side of each, that is, four pages
written on four sheets. The four sides or pages containing written matter are paged "Pag. 1," "Pag. 2," "Pag. 3," "Pag. 4,"
successively. Each of the first two sides or pages, which was issued, was signed by the testator and the three witnesses
on the margin, left side of the reader. On the third page actually used, the signatures of the three witnesses appear also
on the margin, left side of the reader, but the signature of the testator is not on the margin, but about the middle of the
page, at the end of the will and before the attestation clause. On the fourth page, the signatures of the witnesses do not
appear on the margin, but at the bottom of the attestation clause, it being the signature of the testator that is on the
margin, left side of the reader.
The defects attributed to the will are:
(a) The fact of not having been signed by the testator and the witnesses on each and every sheet on the left margin; (b)
the fact of the sheets of the document not being paged with letters; (c) the fact that the attestation clause does not state
the number of sheets or pages actually used of the will; and (d) the fact that the testator does not appear to have signed
all the sheets in the presence of the three witnesses, and the latter to have attested and signed all the sheets in the
presence of the testator and of each other.
As to the signatures on the margin, it is true, as above stated, that the third page actually used was signed by the testator,
not on the left margin, as it was by the witnesses, but about the middle of the page and the end of the will; and that the
fourth page was signed by the witnesses, not on the left margin, as it was by the testator, but about the middle of the page
and at the end of the attestation clause.
In this respect the holding of this court in the case of Avera vs. Garcia and Rodriguez (42 Phil., 145), is applicable,
wherein the will in question was signed by the testator and the witnesses, not on the left, but right, margin. The rule laid
down in that case is that the document contained the necessary signatures on each page, whereby each page of the will
was authenticated and safeguarded against any possible alteration. In that case, the validity of the will was sustained, and
consequently it was allowed to probate.
Applying that doctrine to the instant case, we hold that, as each and every page used of the will bears the signatures of
the testator and the witnesses, the fact that said signatures do not all appear on the left margin of each page does not
detract from the validity of the will.lawphi1.net
Turning to the second defect alleged, that is to say, the fact that the sheets of the document are not paged with letters,
suffice it to cite the case of Unson vs. Abella (43 Phil., 494), where this court held that paging with Arabic numerals and
not with letters, as in the case before us, is within the spirit of the law and is just as valid as paging with letters.
As to the proposition that the attestation clause does not state the number of sheets or pages of the will, which is the third
defect assigned, it must be noted that the last paragraph of the will here in question and the attestation clause, coming
next to it, are of the following tenor:

In witness whereof, I set my hand unto this will here in the town of Camalig, Albay,
Philippine Islands, this 26th day of November, nineteen hundred and eighteen, composed
of four sheets, including the next:

ANTONIO MOJAL

(Signed and declared by the testator Don Antonio Mojal to be his last will and testament in
the presence of each of us, and at the request of said testator Don Antonio Mojal, we
signed this will in the presence of each other and of the testator.)

PEDRO CARO
SILVERIO MORCO

ZOILO MASINAS

As may be seen, the number of sheets is stated in said last paragraph of the will. It is true that in the case of Uy Coque
vs. Navas L. Sioca (43 Phil., 405), it was held that the attestation clause must state the number of sheets or pages
composing the will; but when, as in the case before us, such fact, while it is not stated in the attestation clause, appears at
the end of the will proper, so that no proof aliunde is necessary of the number of the sheets of the will, then there can be
no doubt that it complies with the intention of the law that the number of sheets of which the will is composed be shown by
the document itself, to prevent the number of the sheets of the will from being unduly increased or decreased.
With regard to the last defect pointed out, namely, that the testator does not appear to have signed on all the sheets of the
will in the presence of the three witnesses, and the latter to have attested and signed on all the sheets in the presence of
the testator and of each other, it must be noted that in the attestation clause above set out it is said that the testator
signed the will "in the presence of each of the witnesses" and the latter signed "in the presence of each other and of the
testator." So that, as to whether the testator and the attesting witnesses saw each other sign the will, such a requirement
was clearly and sufficiently complied with. What is not stated in this clause is whether the testator and the witnesses
signed all the sheets of the will.
The act of the testator and the witnesses seeing reciprocally the signing of the will is one which cannot be proven by the
mere exhibition of the will unless it is stated in the document. And this fact is expressly stated in the attestation clause now
before us. But the fact of the testator and the witnesses having signed all the sheets of the will may be proven by the mere
examination of the document, although it does not say anything about this, and if that is the fact, as it is in the instant
case, the danger of fraud in this respect, which is what the law tries to avoid, does not exist.
Therefore, as in the instant case the fact that the testator and the witnesses signed each and every page of the will is
proven by the mere examination of the signatures in the will, the omission to expressly state such evident fact does not
invalidate the will nor prevent its probate.
The order appealed from is affirmed with the costs against the appellants. So ordered.
Johnson, Malcolm, and Villamor, JJ., concur.

G.R. No. 17857

June 12, 1922

In re will of Josefa Zalamea y Abella, deceased.

PEDRO UNSON, petitioner-appellee,
vs.
ANTONIO ABELLA, ET AL., opponents-appellants.
Crispin Oben for appellants.
Pedro Guevarra and Carlos Ledesma for appellee.
VILLAMOR, J.:
On July 19, 1918, Doa Josefa Zalamea y Abella, single, 60 years old, who was residing in the municipality of Pagsanjan,
Province of Laguna, executed her last will and testament with an attached inventory of her properties, Exhibits A and A-1,
in the presence of three witnesses, who signed with her all the pages of said documents. The testatrix died on the 6th of
January, 1921, and, as the record shows, the executor appointed in the will, Pedro Unson, filed in the court of First
Instance of Laguna on the 19th of January of the same year an application for the probate of the will and the issuance of
the proper letters of administration in his favor.
To said application an opposition was presently by Antonio Abella, Ignacia Abella, Avicencia Abella, and Santiago Vito,
alleging that the supposed will of the deceased Zalamea was not executed in conformity with the provinces of the law,

inasmuch as it was not paged correlatively in letters, nor was there any attestation clause in it, nor was it signed by the
testatrix and the witnesses in the presence of each other.
Trial having been held, the judge a quo overruled the opposition of the contestants, and ordered the probate of the will,
Exhibit A, and the inventory, Exhibit A-1, holding that both documents contained the true and last will of the deceased
Josefa Zalamea.
From the judgment of the court below, the contestants have appealed, and in their brief they assign three errors, which, in
their opinion, justify the reversal of the judgment appealed from.
The first error assigned by the appellants as committed by the court below is its finding to the effect that Exhibit A, said to
be the will of the deceased Josefa Zalamea, was executed with all the solemnities required by the law.
The arguments advanced by appellants' counsel in support of the first assignment of error tend to impeach the credibility
of the witnesses for the proponent, specially that of Eugenio Zalamea. We have made a careful examination of the
evidence, but have not found anything that would justify us in disturbing the finding of the courta quo. The attesting
witnesses, Eugenio Zalamea and Gonzalo Abaya, clearly testify that together with the other witness to the will, Pedro de
Jesus, they did sign each and every page of the will and of the inventory in the presence of each other and of the testatrix,
as the latter did likewise sign all the pages of the will and of the inventory in their presence.
In their brief the appellants intimate that one of the pages of the will was not signed by the testatrix, nor by the witnesses
on the day of the execution of the will, that is, on the 19th of July, 1918, basing their contention on the testimony of Aurelio
Palileo, who says that on one occasion Gonzalo Abaya told him that one of the pages of the will had not been signed by
the witnesses, nor by the testatrix on the day of its execution. Palileo's testimony is entirely contradicted by Gonzalo
Abaya not only in the direct, but in the rebuttal, evidence as well. To our mind, Palileo's testimony cannot prevail over that
of the attesting witnesses, Gonzalo Avaya and Eugenio Zalamea. The appellants impeach the credibility of Eugenio
Zalamea, for having made a sworn declaration before the justice of the peace of Santa Cruz, Laguna, before the trial of
this case, to the effect that he was really one of the witnesses to the will in question, which fact was corroborated by
himself at the trial. The appellants take Zalamea's testimony in connection with the dismissal of a criminal case against a
nephew of his, in whose success he was interested, and infer from this fact the partiality of his testimony. We deem this
allegation of little importance to impeach the credibility of the witness Zalamea, especially because his testimony is
corroborated by the other attesting witness. Gonzalo Abaya, and by attorney Luis Abaya, who had prepared the testament
at the instance of the testatrix. The foregoing is sufficient for us to conclude that the first assignment of error made by the
appellants is groundless.
The appellants contend that the court below erred in admitting the will to probate notwithstanding the omission of the
proponent to produce one of the attesting witnesses.
At the trial of this case the attorneys for the proponent stated to the court that they had necessarily to omit the testimony
of Pedro de Jesus, one of the persons who appear to have witnessed the execution of the will, for there were reasonable
grounds to believe that said witness was openly hostile to the proponent, inasmuch as since the announcement of the trial
of the petition for the probate of the will, said witness has been in frequent communication with the contestants and their
attorney, and has refused to hold any conference with the attorneys for the proponent. In reply to this, the attorney for the
contestants, said to the court, "without discussing for the present whether or not in view of those facts (the facts
mentioned by the attorneys for the petitioner), in the hypothesis that the same are proven, they are relieved from
producing that witness, for while it is a matter not decided, it is a recognized rule that the fact that a witness is hostile does
not justify a party to omit his testimony; without discussing this, I say, I move that said statement be stricken out, and if the
proponent wants these facts to stand to stand in the record, let him prove them." The court a quo ruled, saying, "there is
no need."
To this ruling of the court, the attorney for the appellants did not take any exception.
In the case of Avera vs. Garcia and Rodriguez (42 Phil., 145), recently decided by this court, in deciding the question
whether a will can be admitted to probate, where opposition is made, upon the proof of a single attesting witness, without
producing or accounting for the absence of the other two, it was said; "while it is undoubtedly true that an uncontested will
may be proved by the testimony of only one of the three attesting witnesses, nevertheless in Cabang vs. Delfinado (34

Phil., 291), this court declared after an elaborate examination of the American and English authorities that when a contest
is instituted, all of the attesting witnesses must be examined, if alive and within reach of the process of the court.
In the present case no explanation was made at the trial as to why all three of the attesting witnesses were not
produced, but the probable reason is found in the fact that, although the petition for the probate of this will had
been pending from December 21, 1917, until the date set for the hearing, which was April 5, 1919, no formal
contest was entered until the very day set for the hearing; and it is probable that the attorney for the proponent,
believing in good faith that probate would not be contested, repaired to the court with only one of the three
attesting witnesses at hand, and upon finding that the will was contested, incautiously permitted the case to go to
proof without asking for a postponement of the trial in order that he might produce all the attesting witnesses.
Although this circumstance may explain why the three witnesses were not produced, it does not in itself supply
any basis for changing the rule expounded in the case above referred to; and were it not for a fact now to be
mentioned, this court would probably be compelled to reverse this case on the ground that the execution of the
will had not been proved by a sufficient number of attesting witnesses.
It appears, however, that this point was not raised by the appellant in the lower court either upon the submission
of the cause for determination in that court or upon the occasion of the filing of the motion for a new trial.
Accordingly it is insisted for the appellee that this question cannot now be raised for t he first time in this court. We
believe this point is well taken, and the first assignment of error must be declared not to be well taken. This exact
question has been decided by the Supreme Court of California adversely to the contention of the appellant, and
we see no reason why the same rule of practice should not be observed by us. (Estate of McCarty, 58 Cal., 335,
337.)
There are at least two reasons why the appellate tribunals are disinclined to permit certain questions to be raised
for the first time in the second instance. In the first place it eliminates the judicial criterion of the Court of First
Instance upon the point there presented and makes the appellate court in effect a court of first instance with
reference to that point, unless the case is remanded for a new trial. In the second place, it permits, if it does not
encourage, attorneys to trifle with the administration of justice by concealing from the trial court and from their
opponent the actual point upon which reliance is placed, while they are engaged in other discussions more
simulated than real. These considerations are, we think, decisive.
In ruling upon the point above presented we do not wish to be understood as laying down any hard and fast rule
that would prove an embarrassment to this court in the administration of justice in the future. In one way or
another we are constantly here considering aspects of cases and applying doctrines which have escaped the
attention of all persons concerned in the litigation below; and this is necessary if this court is to contribute the part
due from it in the correct decision of the cases brought before it. What we mean to declare is that when we
believe that substantial justice has been done in the Court of First Instance, and the point relied on for reversal in
this court appears to be one which ought properly to have been presented in that court, we will in the exercise of a
sound discretion ignore such question upon appeal; and this is the more proper when the question relates to a
defect which might have been cured in the Court of First Instance if attention had been called to it there. In the
present case, if the appellant had raised this question in the lower court, either at the hearing or upon a motion for
a new trial, that court would have had the power, and it would have been its duty, considering the tardy institution
of the contest, to have granted a new trial in order that all the witnesses to the will might be brought into court. But
instead of thus calling the error to the attention of the court and his adversary, the point is first raised by the
appellant in this court. We hold that this is too late.
Properly understood, the case of Cabang vs. Delfinado, supra, contains nothing inconsistent with the ruling we
now make, for it appears from the opinion in that case that the proponent of the will had obtained an order for a
republication and new trial for the avowed purpose of presenting the two additional attesting witnesses who had
not been previously examined, but nevertheless subsequently failed without any apparent reason to take their
testimony. Both parties in that case were therefore fully apprised that the question of the number of witnesses
necessar to prove the will was in issue in the lower court.
In the case at bar, we do not think this question properly to have been raised at the trial, but in the memorandum
submitted by the attorney for the appellants to the trial court, he contended that the will could not be admitted to probate
because one of the witnesses to the will was not produced, and that the voluntary non-production of this witness raises a

presumption against the pretension of the proponent. The trial court found that the evidence introduced by the proponent,
consisting of the testimony of the two attesting witnesses and the other witness who was present at the execution, and
had charge of the preparation of the will and the inventory, Exhibits A and A-1, was sufficient. As announced in Cabang vs.
Delfinado, supra, the general rule is that, where opposition is made to the probate of a will, the attesting witnesses must
be produced. But there are exceptions to this rule, for instance, when a witness is dead, or cannot be served with process
of the court, or his reputation for truth has been questioned or he appears hostile to the cause of the proponent. In such
cases, the will may be admitted to probate without the testimony of said witness, if, upon the other proofs adduced in the
case, the court is satisfied that the will has been duly executed. Wherefore, we find that the non-production of the attesting
witness, Pedro de Jesus, as accounted for by the attorney for the proponent at the trial, does not render void the decree
of the court a quo, allowing the probate.
But supposing that said witness, when cited, had testified adversely to the application, this would not by itself have
change the result reached by the court a quo, for section 632 of the Code of Civil Procedure provides that a will can be
admitted to probate, notwithstanding that one or more witnesses do not remember having attested it, provided the court is
satisfied upon the evidence adduced that the will has been executed and signed in the manner prescribed by the law.
The last error assigned by the appellants is made to consist in the probate of the inventory, Exhibit A-1, despite the fact
that this exhibit has no attestation clause in it, and its paging is made in Arabic numerals and not in letters.
In the third paragraph of the will, reference is made to the inventory, Exhibit A-1, and at the bottom of said will, the testatrix
Josefa Zalamea says:
In witness whereof, I sign this will composed of ten folios including the page containing the signatures and the
attestation of the witnesses; I have likewise signed the inventory attached to this will composed of ten folios in the
presence of Messrs. Gonzalo Abaya, Eugenio Zalamea, Pedro de Jesus, in this municipality of Pagsanjan,
Laguna, Philippine Islands, this 19th of July, 1918.
And the attestation clause is as follows:
The foregoing will composed of ten folios including this one whereunto we have affixed our signatures, as well as
the inventory of the properties of Doa Josefa Zalamea y Abella, was read to Doa Josefa Zalamea y Abella, and
the latter affixed her name to the last, and each and every page of this will and inventory composed of ten folios in
our presence; and she declared this to be her last will and testament and at her request we have affixed hereunto
our respective signatures in her presence and in the presence of each other as witnesses to the will and the
inventory this 19th of July, 1918, at Pagsanjan, Laguna, P.I.
(Sgd.) GONZALO ABAYA,
EUGENIO ZALAMEA,
PEDRO DE JESUS.
In view of the fact that the inventory is referred to in the will as an integral part of it, we find that the foregoing attestation
clause is in compliance with section 1 of Act No. 2645, which requires this solemnity for the validity of a will, and makes
unnecessary any other attestation clause at the end of the inventory.
As to the paging of the will in Arabic numerals, instead of in letters, we adhere to the doctrine announced in the case
of Aldaba vs. Roque (p. 378, ante), recently decided by this court. In that case the validity of the will was assailed on the
ground that its folios were paged with the letters A, B, C, etc., instead of with the letters "one," two," "three," etc. It was
held that this way of numbering the pages of a will is in compliance with the spirit of the law, inasmuch as either one of
these methods indicates the correlation of the pages and serves to prevent the abstraction of any of them. In the course of
the decision, we said: "It might be said that the object of the law in requiring that the paging be made in letters is to make
falsification more difficult, but it should be noted that since all the pages of the testament are signed at the margin by the
testatrix and the witnesses, the difficulty of forging the signatures in either case remains the same. In other words the
more or less degree of facility to imitate the writing of the letters A, B, C, etc., does not make for the easiness to forge the
signatures. And as in the present case there exists the guaranty of the authenticity of the testament, consisting in the
signatures on the left margins of the testament and the paging thereof as declared in the attestation clause, the holding of
this court in Abangan vs. Abangan (40 Phil., 476), might as well be repeated:

"The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to
avoid substitution of wills and testaments and to guaranty their truth and authenticity. Therefore the laws on this
subject should be interpreted in such a way as to attain these primordial ends. But, on the other hand, also one
must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to
make a will. So when an interpretation whatsoever, that adds nothing but demands more requisites entirely
unnecessary, useless, and frustrative of the testator's last will, must be disregarded."
In that case the testament was written on one page, and the attestation clause on another. Neither one of these pages
was numbered in any way, and it was held: "In a will consisting of two sheets the first of which contains all the
testamentary dispositions and is signed at the bottom by the testator and three witnesses, and the second contains only
the attestation clause and is signed also at the bottom by the three witnesses it is not necessary that both sheets be
further signed on their margins by the testator and the witnesses, or be paged."
This means that, according to the particular case, the emission of paging does not necessarily render the testament
invalid.
The law provides that the numbering of the pages should be in letters placed on the upper part of the sheet, but if the
paging should be placed in the lower part, would the testament be void for this sole reason? We believe not. The law also
provides that the testator and the witnesses must sign the left margin of each of the sheets of the testament; but if they
should sign on the right margin, would this fact also annul the testament? Evidently not. This court has already held
in Avera vs. Garcia and Rodriguez (42 Phi., 145):
"It is true that the statute says that the testator and the instrumental witnesses shall sign their names on the left
margin of each and every page; and it is undeniable that the general doctrine is to the effect that all statutory
requirements as to the execution of wills must be fully complied with. The same execution for wills must be fully
complied with. The same doctrine is also deducible from cases heretofore decided by this court."
"Still some details at time creep into legislative enactments which are so trivial that it would be absurd to suppose
that the Legislature could have attached any decisive importance to them. The provision to the effect that the
signatures of the testator and witnesses shall be written on the left margin of each page rather than on the
margin seems to be of this character. So far as concerns the authentication of the will, and of every part
thereof, it can make no possible difference whether the names appear on the left or on the right margin, provided
they are on one or the other. In Craig vs. Tatlonghari (G. R. No. 12558, decided March 23, 1918, not reported),
this court declared a will void which was totally lacking in the signatures required to be written on its several
pages; and in the case of Re Estate of Saguinsin (41 Phil., 875) a will was likewise declared void which contained
the necessary signatures on the margin of each leaf (folio), but not in the margin of each page containing written
matter."
We do not desire to intimate that the numbering in letters is a requisite of no importance. But since its principal object is to
give the correlation of the pages, we hold that his object may be attained by writing one, two, three, etc., as well as by
writing A, B, C, etc.
We see no reason why the same rule should not be applied where the paging is in Arabic numerals, instead of in letters,
as in the inventory in question. So that, adhering to the view taken by this court in the case of Abangan vs. Abangan, and
followed in Aldava vs. Roque, with regard to the appreciation of the solemnities of a will, we find that the judgement
appealed from should be, as is hereby, affirmed with the costs against the appellants. So ordered.

G.R. No. 46995 June 21, 1940

In re testate estate of the deceased Hilarion Martir.
HERMOGENES N. MARTIR applicant-appellee, vs. ANGELA MARTIR, oppositor-appellant.
Zoilo Hilario for appellant.
Hilado, Lorenzo and Hilado for appellee.

STREET,LAUREL, J.: chanrobles virtual law library

This is an appeal from the decision of the Court of First Instance of Occidental Negros in special proceeding No. 7205,
rendered on July 9, 1938, allowing the probate of the last will and testament (Exhibit AA) of Hilarion Martir and confirming
the. appointment of Hermogenes Martir as the executor..chanroblesvirtualawlibrary chanrobles virtual law library
The following pertinent facts are disclosed by the record: On December 22, 1936, Hermogenes Martir filed a petition with
the Court of First Instance of Occidental Negros for the probate of the will of his deceased father, Hilarion Martir, the
document being then identified as Exhibit AA. The said document appears to have been prepared by attorney and notary
public, Esteban H. Korral, in the Visayan dialect, with one original and two carbon copies. On August 14, 1935, the will
was signed by said testator and the three attesting witnesses: Valeriano Gatuslao, Dionisio Gonzaga, and Olimpio de la
Rama. It was decided that one of the witnesses read the will to the testator, and for this purpose Dionisio Gonzaga was
selected. This was done. After the reading to the document the testator wrote on the space immediately beneath the last
paragraph of the instrument on page 3, the following: "Murcia, Occidental Negros - Agosto 14. 1935." This addition in the
handwriting of the testator appears both in the original Exhibit AA and in the carbon copy Exhibit AA-1. The testator than
proceeded to sign the original on the left margin of the four pages and at the foot of its body over his typewritten name
and surname on page 3 thereof in the presence of the above-named attesting witnesses. Then the witnesses, one after
another and in the presence of the testator and of each other. signed each and every one of the four pages on the left
margin, Olimpio de la Rama also signing at the foot of the attestation clause on page 3, and Valeriano Gatuslao and
Dionisio Gonzaga likewise affixed their signatures at the foot of the same clause, but, for lack of conveniently sufficient
space on page 3, on the upper part of page 4. Below the signatures of the witnesses Gatuslao and Gonzaga on the upper
part of page 4 there appears a "Nota" over the signature of the testator containing certain instruction to his children. Under
this note appears the declaration signed by the oppositor Salvacion Angela expressing conformity to the conditions set
forth above.chanroblesvirtualawlibrary chanrobles virtual law library
On January 26, 1937, an opposition was entered to the probate of this will by Salvacion Angela, daughter of the testator.
The opposition was amended on February 12, 1937, alleging as principal grounds that the will was not executed and
signed by the witnesses in accordance with law; that the signatures of the testator were obtained through deceit and fraud
and that undue influence was used by the proponent Hermogenes Martir over the testator. After hearing, the trial court
allowed the will to probate and, as stated, confirmed the appointment of Hermogenes Martir as
executor.chanroblesvirtualawlibrary chanrobles virtual law library
On appeal the oppositor-appellant makes an assignment of seven errors which may be condensed into the following: ( a)
that the will was void because the first sheet is not numbered as required by law; ( b) that Arabic numerals, instead of
letters, were used in the pagination of the other sheets of the will, ( c) that fraud and undue influence were used on the
testator, and ( d) that the attestation clause was insufficient in law.chanroblesvirtualawlibrary chanrobles virtual law library
The first sheet of the will bears no number and the oppositor claims that this circumstance is fatal to its validity. The
authenticity of this unnumbered page, however, is not questioned, nor the genuineness of the signatures of the testator of
the witnesses on this sheet. There is no suggestion either that the deceased had executed another will either before or
after the execution of the controverted will. The principal object of the requirement with reference to the numeration of the
pages of the will is to forestall any attempt to suppress or substitute any of the pages thereof. In the absence of collusion
or fraud and there being no question regarding the authenticity of the first page and the genuineness of the signatures
appearing thereon, we hold that the mere fact that the first, sheet is unnumbered is not sufficient to justify the invalidation
of the will (Abangan vs. Abangan, 40 Phil., 476 Unson vs. Abella, 43 Phil., 504).chanroblesvirtualawlibrary chanrobles
virtual law library
With reference to the use of Arabic numerals instead of letters on the of the will, this point is no longer controversial.
Arabic numerals are sufficient to indicate the correlation of the pages and to apprise abstraction of any of them.
(Unson vs. Abella, 43 Phil., 504; Aldabavs. Roque, 43 Phil., 378).chanroblesvirtualawlibrary chanrobles virtual law library
On the point of fraud, deceit and undue influence, the lower court found to the contrary. Upon the other hand, it appears
that the oppositor waived her right to present evidence on this point. It should also be observed that the testator lived for
over a year after the execution of the will and the fact that he did not change or revoke the will is very significant. Letters
Exhibits "EE" and "LL" written by the oppositor and her husband to the deceased furnish an explanation for the apparent
discriminatory attitude of the testator.chanroblesvirtualawlibrarychanrobles virtual law library

The opposition to the attestation clause is based on two grounds: (1) the statement of the attestation clause that the will
consists of four pages when it is written on sheet and (2) the said clause does not recite that the testator signed each and
every page of the will in the presence of the witnesses. An examination, however, of Exhibit AA shows that the will really
consists of four pages, the first page bearing no number and the other three pages correlatively numbered in Arabic
numerals. The attestation clause as follows:
This will is composed of four pages and had been made and published by Hilarion Martir who was the testator therein
named, and that will was signed at the foot and on the left margin of each and every page thereof in the presence of the
said witnesses.
We are of the opinion that when the witnesses certified in the attestation clause that the same was signed in their
presence, they could not possibly refer to another person than the testator himself.chanroblesvirtualawlibrary chanrobles
virtual law library
In conclusion, we find that the circumstances point to the execution of the contested will, and as there is no evidence of
bad faith or fraud, the will should be admitted to probate although it may suffer from minor imperfections of language or
from other non-essential details (Teofila Adeva Vda. de Leynez vs. Ignacio Leynez, G. R. No. 46097, promulgated
October 18, 1939).chanroblesvirtualawlibrary chanrobles virtual law library
The judgment appealed from is affirmed, with costs against the oppositor-appellant. So ordered.
G.R. No. L-5826

April 29, 1953

Testate estate of the late VICENTE CAGRO. JESUSA CAGRO, petitioner-appellee,

vs.
PELAGIO CAGRO, ET AL., oppositors-appellants.
Clouduallo Lucero and Vicente C. Santos for appellants.
Marciano Chitongco and Zosimo B. Echanova for appellee.
PARAS, C.J.:
This is an appeal interposed by the oppositors from a decision of the Court of First Instance of Samar, admitting to
probate the will allegedly executed by Vicente Cagro who died in Laoangan, Pambujan, Samar, on February 14, 1949.
The main objection insisted upon by the appellant in that the will is fatally defective, because its attestation clause is not
signed by the attesting witnesses. There is no question that the signatures of the three witnesses to the will do not appear
at the bottom of the attestation clause, although the page containing the same is signed by the witnesses on the left-hand
margin.
We are of the opinion that the position taken by the appellant is correct. The attestation clause is 'a memorandum of the
facts attending the execution of the will' required by law to be made by the attesting witnesses, and it must necessarily
bear their signatures. An unsigned attestation clause cannot be considered as an act of the witnesses, since the omission
of their signatures at the bottom thereof negatives their participation.
The petitioner and appellee contends that signatures of the three witnesses on the left-hand margin conform substantially
to the law and may be deemed as their signatures to the attestation clause. This is untenable, because said signatures
are in compliance with the legal mandate that the will be signed on the left-hand margin of all its pages. If an attestation
clause not signed by the three witnesses at the bottom thereof, be admitted as sufficient, it would be easy to add such
clause to a will on a subsequent occasion and in the absence of the testator and any or all of the witnesses.
Wherefore, the appealed decision is reversed and the probate of the will in question denied. So ordered with costs against
the petitioner and appellee.
Pablo, Bengzon, Montemayor, Jugo and Labrador, JJ., concur.

Separate Opinions
BAUTISTA ANGELO, J., dissenting:
I dissent. In my opinion the will in question has substantially complied with the formalities of the law and, therefore, should
be admitted to probate . It appears that the will was signed by the testator and was attested by three instrumental
witnesses, not only at the bottom, but also on the left-hand margin. The witnesses testified not only that the will was
signed by the testator in their presence and in the presence of each other but also that when they did so, the attestation
clause was already written thereon. Their testimony has not been contradicted. The only objection set up by the
oppositors to the validity of the will is the fact that the signatures of the instrumental witnesses do not appear immediately
after the attestation clause.
This objection is too technical to be entertained. In the case of Abangan vs. Abangan, (40 Phil., 476), this court said that
when the testamentary dispositions "are wholly written on only one sheet signed at the bottom by the testator and three
witnesses (as the instant case),their signatures on the left margin of said sheet would be completely purposeless." In such
a case, the court said, the requirement of the signatures on the left hand margin was not necessary because the purpose
of the law which is to avoid the substitution of any of the sheets of the will, thereby changing the testator's dispositions
has already been accomplished. We may say the same thing in connection with the will under consideration because
while the three instrumental witnesses did not sign immediately by the majority that it may have been only added on a
subsequent occasion and not at the uncontradicted testimony of said witnesses to the effect that such attestation clause
was already written in the will when the same was signed.
The following observation made by this court in the Abangan case is very fitting:
The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud to
avoid substitution of wills and testaments and to guaranty their truth and authenticity. Therefore the laws on this
subject should be interpreted in such a way as to attain these primordial ends. But, on the other hand, also one
must not lose sight of the fact that it i not the object of the law to restrain and curtail the exercise of the right to
make a will. So when an interpretation already given assures such ends, any other interpretation already given
assures such ends, any other interpretation whatsoever, that adds nothing but demands more requisites entirely
unnecessary useless and frustrative of the testator's last will, must be disregarded. (supra)
We should not also overlook the liberal trend of the New Civil Code in the matter of interpretation of wills, the purpose of
which, in case of doubt, is to give such interpretation that would have the effect of preventing intestacy (article 788 and
791, New Civil Code)
I am therefore of the opinion that the will in question should be admitted to probate.
Feria, J., concurs.

TUASON, J., dissenting:

I cuncur in Mr. Justice Bautista's dissenting opinion and may add that the majority decision erroneously sets down as a
fact that the attestation clause was no signed when the witnesses signatures appear on the left margin and the real and
only question is whether such signatures are legally sufficient.
The only answers, in our humble opinion, is yes. The law on wills does not provide that the attesting witness should sign
the clause at the bottom. In the absence of such provision, there is no reason why signatures on the margin are not good.
A letter is not any the less the writter's simply because it was signed, not at the conventional place but on the side or on
top.

G.R. No. L-27440 December 24, 1927

JOSE VILLAFLOR, petitioner-appellant,
vs.
DEOGRACIAS TOBIAS, ET AL., oppositors-appellees.
Simeon Ramos and Araneta & Zaragoza for appellant.
Vicente Foz and Antonio Directo for appellees.

OSTRAND, J.:
This is an appeal from the judgment denying a petition for the probate of a will alleged to have been executed by one
Gregoria Villaflor who died in the municipality of Santo Domingo, Province of Ilocos Sur on October 7, 1925. The petition
was presented by Jose Villaflor, one of the testamentary heirs of the deceased. Pilar Villaflor, Deogracias Tobias, and
several others whose names do not appear in the record, contested the will upon the following grounds: (1) That it was not
signed by the alleged testatrix personally though she was able to do so at the time of the execution of the document; (2)
that said testatrix did not authorize any one to sign the alleged will in her name; (3) that both before and after the
execution of the document, Gregoria Villaflor signed various documents by thumb marks; (4) that although it is true that
the testatrix requested that the will be prepared, she nevertheless refused to sign it because it was contrary to her desires
and instructions; (5) that subsequent to the date upon which the alleged will was executed, Gregoria Villaflor on several
occasions stated that it was not her testament; (6) that the alleged will was not executed or signed in conformity of the law.
The grounds upon which the court below based the rejection of the document are thus stated in this decision.
After a careful examination of all the evidence of record, this court is of opinion that it has been sufficiently proved
that Claro Lazo, the person who is alleged to have written the name of the testatrix in her behalf and by her
express direction, subscribed the name and surname of the testatrix and signed the will in question without Rufino
D. Soliven, one of the attesting witnesses, signed it; and lastly, when Rufino D. Soliven signed the will the witness
Vicente Tacderas was not present.
Besides the foregoing defect, which the court believes fatal, it also finds that the will in question, marked Exhibit B
of the applicant, was typewritten on eight catalan sheets, one separated from the others; that the attestation
clause was written on a separate sheet, marked page 9, when said clause could not have been written totally or
partially on page 8, since one-half of this latter page is blank.lawphi1.net
In the opinion of the court, all this circumstances tend to make the authenticity and due execution of the will in
question very doubtful and suspicious. And if the testimony of the witnesses for the opposition should be taken
into account as well as the circumstance that the testatrix Gregoria Villaflor has neither signed or subscribed the
alleged will, notwithstanding the fact that it has been proven in the record, that on July 12, 1923, the day in which
it is alleged that said will was executed, the testatrix was, in good and sound health, although she could not walk
on her own feet inasmuch as she was then suffering from rheumatism or partial paralysis of the lower extremities,
and that on July 27, and May 25, 1923, the testatrix Gregoria Villaflor used to mark with her thumb, if she did not
sign, the document she executed, as it was proven during the trials by Exhibit 1 and 2 of the opponents, the doubt
and suspicion which this court entertains in regard to the authenticity of the will in question, becomes a certainty
that said testament is false.
We are reluctant to set aside the findings of the court below but they are, in our opinion, so clearly without sufficient
support in the record that we are constrained to reject them. The will in question is dated July 12, 1923, and was prepared
by a lawyer, Eustaquio Gallardo, and as far as appearances go, was executed in strict compliance with the provisions of
section 618 of the Code of Civil Procedure for the execution of wills. The testatrix's name was signed by one Claro Lazo, a
clerk in the office of municipal treasurer of Santo Domingo, and the attesting witnesses were Vicente Tacderas, municipal
president, Rufino D. Soliven, chief of police, and Mariano Pizarro, municipal treasurer, all of the town of Santo Domingo.
The finding of the court below that the witness Soliven was not present when Claro Lazo signed the name of testatrix and
when Vicente Tacderas signed as witness, is based on the fact that, in testifying in this case, Claro Lazo upon being

asked to enumerate the names of the persons present at the time of signing of the document, omitted the name of
Soliven. But it appears from the transcript of the testimony that he afterwards corrected his original statement and testified
that Soliven, as well as the other witnesses to the will, was present while all of the signatures were fixed. This is in
harmony with the testimony of all of the instrumental witnesses and is undoubtfully true; there is, indeed, nothing strange
or unusual in a mistake such as that made by Lazo. It may be noted that it is not disputed that the lawyer Gallardo was
present during the whole proceeding and as he appears to have possessed full knowledge of the formal requirements for
the execution of the will, it is highly improbable that he would have allowed the will in question to be signed without the
presence of a testatrix and of all the witnesses.
That the attestation clause of the will is written on a separate page and not on the last page of the body of the document
is, in our opinion, a matter of minor importance and is explained by the fact that if the clause had been written on the eight
page of the will in direction continuation of the body thereof, there would have been sufficient space on that page for the
signatures of the witnesses to the clause. It is also to be observed that all of the pages, including that upon which the
attestation clause is written, bear the signatures of all the witnesses and that there is no question whatever as to the
genuineness of said signatures.
The fact that the name of the testatrix was written by another person, and that she did not sign by thumb mark, is easily
explained and is evidently due to an attempt on the part of the lawyer Gallardo to comply strictly with the following clause
in the Spanish text of section 618 of the Code of Civil Procedure: "Excepto en el caso a que se refiere el articulo anterior,
no sera valido para la transmision de bienes muebles e inmuebles, ni los gravara y afectara, ningun testamento a menos
que este escrito y que haya sido firmado por el testador, o que lleve el nombre de este, escrito por otra persona en su
presencia y bajo su direccion expresa, . . . ." The making of a finger mark is not "escribir" and it may be noted that
Gallardo apparently is a good Spanish scholar, that it does not appear that he knows the English language;. and that he
therefore probably used the Spanish text of the Code.
There is some testimony on the part of the contestants to the effect that the testatrix on various occasions, subsequent to
the execution of the will, had stated that it was not in conformity with her instructions and that it was not her will. Assuming
that such statements were made, we can give them but little importance. The testatrix was an old woman and might have
well made the statements by way of justification in conversation with persons who considered themselves wronged by the
provisions of her will, but expressions of that kind cannot, of course, work the revocation of the document. The testatrix
lived for over two years after the will was made and had ample opportunity to make another will if she was dissatisfied with
the first.
For the reasons stated the appealed judgment is hereby reversed and it is ordered that the document in question be
admitted to probate as the last will and testament of the deceased Gregoria Villaflor. No costs will be allowed. So ordered.
Avancea, C.J., Street, Malcolm, and Villamor, JJ., concur.
Johnson, J., dissents.
G.R. No. 16008

September 29, 1921

IN RE WILL OF THE DECEASED LUCINA ANDRADA, LUCILA ARCE, petitioner-appellant.

J. Dorado, J. Tirol, and J. Hontiveros for appellant.
STREET, J.:
Lucina Andrada died on June 5, 19919, in the Municipality of Capiz, Province of Capiz; and soon thereafter a petition was
presented to the Cour of First Instance of Capiz by Lucila Arce to establish a document purporting to be the last will and
testament of the deceased. Upon hearing the petition, his Honor, Judge Antonio Villareal, declared that the document in
question had not been executed in conformity with the requirements of section 618 of the Coe of Civil Procedure, as
amended by Act No. 2645 of the Philippine Legislature. He therefore refused to admit the purported will to probate, and
the petitioner appealed.
The attesting clause of the will in question is incorporated in the will itself, constituting the last paragraph thereof; and its
defect consists in the fact that it does not state the number of sheets or pages upon which the will is written, though it

does state that the testatrix and the instrumental witnesses signed on every page, as is in fact obvious from an inspection
of the instrument. Each of the pages moreover bears successively the Visayan words, "isa," "duha," "tatlo," "apat," "lima,"
which mean respectively "one," "two," "three," "four," "five," Visayan being the dialect in which the instrument is written.
By section 618 of the Code of Civil Procedure, as amended by Act No. 2645, it is required that each and every page of the
will shall be numbered correlatively in letters and that the attesting clause shall state the number of sheets or pages used.
Without decising in this case whether the will in question is rendered invalid by reason of the manner in which the pages
are numbered, the court is unanimous upon the point that the defect pointed out in the attesting clause is fatal. The law
plainly says that the attestation shall state the number of sheets or pages used, the eident purpose being to safeguard the
document from the possiblity of the interpolation of additional pages or the omission of some of the pages actually used. It
is true that this point is also safeguarded by the other two requirements that the pages shall be consecutively lettered and
that each page shall be singed on the left margin by the testator and the witnesses. In light of these requirements it is
really difficult to see any practical necessity for the additional requirement that the attesting clause shall state the number
of sheets or pages used. Nevertheless, it cannot be denied that the last mentioned requirement affords additional secuirty
against the danger that the will may be tampered with; and as the Legislature has seen fit to prescribe this requirement, it
must be considered material.
In two cases we have held that the failure to comply with the strict requirements of this law does not invalidate the
instrument, but the irregularities presented in those cases were entirely rivial, the defect in one case being that a willin
which the dispositive part consisted of a single sheet was not signed in the margin in addition to being signed at the
bottom (In re will of Abangan, 40 Phil., 476); in the others, that the pages comprising the body of the will were signed by
the testator and witnesses on the right margin instead of the left (Avera vs. Garcia and Rodriguez, p. 145, ante). In the
case now before us the defect is, in our opinion, of more significance; and the rule here applicable is that enunciated
in Caraig vs. Tatlonghari, R.G. No. 12558, decided March 23, 1918, not reported, and (In re estate of Saguinsim, 41 Phil.,
875), in each of which the will was held to be invalid.
It results that the trial judge did not err in refusing probate of the will, and the judgment must be affirmed. It is so ordered,
with costs against the appellant.
G.R. No. L-30289

March 26, 1929

SERAPIA DE GALA, petitioner-appellant,

vs.
APOLINARIO GONZALES and SINFOROSO ONA, opponents-appellants.
Sumulong, Lavides & Hilado for petitioner-appellant.
Godofredo Reyes for opponent-appellant Gonzales.
Ramon Diokno for opponent-appellant Ona.
OSTRAND, J.:
On November 23, 1920, Severina Gonzales executed a will in which Serapia de Gala, a niece of Severina, was
designated executrix. The testatrix died in November, 1926, leaving no heirs by force of law, and on December 2, 1926,
Serapia, through her counsel, presented the will for probate. Apolinario Gonzales, a nephew of the deceased, filed an
opposition to the will on the ground that it had not been executed in conformity with the provisions of section 618 of the
Code of Civil Procedure. On April 2, 1927, Serapia de Gala was appointed special administratrix of the estate of the
deceased. She returned an inventory of the estate on March 31, 1927, and made several demands upon Sinforoso Ona,
the surviving husband of the deceased, for the delivery to her of the property inventoried and of which he was in
possession.
On September 20, 1928, the Court of First Instance ordered Sinforoso Ona to deliver to Serapia de Gala all the property
left by the deceased. Instead of delivering the property as ordered, Sinforoso filed a motion asking the appointment of
Serapia de Gala as special administratrix be cancelled and that he, Sinforoso, be appointed in her stead. The motion was
opposed by both Apolinario Gonzales and by Serapia de Gala, but on March 3, 1928, it was nevertheless granted,

Serapia was removed, and Sinforoso was appointed special administrator in her place, principally on the ground that he
had possession of the property in question and that his appointment would simplify the proceedings.
In the meantime and after various continuances and delays, the court below in an order dated January 20, 1928, declared
the will valid and admitted it to probate. All of the parties appealed, Serapia de Gala from the order removing her from the
office of special administratrix, and Apolinario Gonzales and Sinforoso Ona from the order probating the will.
Serapia's appeal requires but little discussion. The burden of the argument of her counsel is that a special administrator
cannot be removed except for one or more of the causes stated in section 653 of the Code of Civil Procedure. But that
section can only apply to executors and regular administrators, and the office of a special administrator is quite different
from that of regular administrator. The appointment of a special administrator lies entirely in the sound discretion of the
court; the function of such an administrator is only to collect and preserve the property of the deceased and to return an
inventory thereof; he cannot be sued by a creditor and cannot pay any debts of the deceased. The fact that no appeal can
be taken from the appointment of a special administrator indicates that both his appointment and his removal are purely
discretionary, and we cannot find that the court below abused its discretion in the present case. In removing Serapia de
Gala and appointing the present possessor of the property pending the final determination of the validity of the will, the
court probably prevented useless litigation.
The appellants Sinforoso Ona and Apolinario Gonzales argue that the will in question was not executed in the form
prescribed by section 618 of the Code of Civil Procedure as amended by Act No. 2645. That section reads as follows:
No will, except as provided in the preceding section, shall be valid to pass any estate, real or personal, nor charge
or affect the same, unless it be written in the language or dialect known by the testator and signed by him, or by
the testator's name written by some other person in his presence, and by his express direction, and attested and
subscribed by three or more credible witnesses in the presence of the testator and of each other. The testator or
the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as
aforesaid, each and every page thereof, on the left margin, and said pages shall be numbered correlatively in
letters placed on the upper part of each sheet. The attestation shall state the number of sheets or pages used,
upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some
other person to write his name, under his express direction, in the presence of three witnesses, and the latter
witnessed and signed the will and all pages thereof in the presence of the testator and of each other.
The principal points raised by the appeal are (1) that the person requested to sign the name of the testatrix signed only
the latter's name and not her own; (2) that the attestation clause does not mention the placing of the thumb-mark of the
testatrix in the will; and (3) that the fact that the will had been signed in the presence of the witnesses was not stated in
the attestation clause but only in the last paragraph of the body of the will.
The first point can best be answered by quoting the language of this court in the case of the Estate of Maria Salva, G. R.
No. 26881:1
An examination of the will in question disclosed that it contains five pages. The name of the old woman, Maria
Salva, was written on the left hand margin of the first four pages and at the end of the will. About in the center of
her name she placed her thumb-mark. About in the center of her name she placed her thumb-mark. The three
witnesses likewise signed on the left-hand margin and at the end of the will.
On these facts, the theory of the trial judge was that under the provisions of section 618 of the Code of Civil
Procedure, as amended by Act No. 2645, it was essential to the validity of the will that the person writing the
name of the maker of the will also sign. Under the law prior to the amendment, it had been held by this court that
where a testator is unable to write and his name is signed by another at his request, in his presence and in that of
the subscribing witnesses thereto, it is unimportant, so far as the validity of the will is concerned, whether the
person who writes the name of the testator signs his own or not. (Barut vs. Cabacungan (1912), 21 Phil., 461).
But his Honor, the trial judge emphasizes that the amendment introduced into the law the following sentence: 'The
testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also
sign, as aforesaid, each and every page thereof, on the left margin . . ..' This requirement, it is said, was not lived
up to in this instance.

There is, however, an entirely different view which can be taken of the situation. This is that the testatrix placed
her thumb-mark on the will in the proper places. When, therefore, the law says that the will shall be 'signed' by the
testator or testatrix, the law is fulfilled not only by the customary written signature but by the testator or testatrix'
thumb-mark. The construction put upon the word 'signed' by most courts is the original meaning of a signum or
sign, rather than the derivative meaning of a sign manual or handwriting. A statute requiring a will to be 'signed' is
satisfied if the signature is made by the testator's mark. (28 R. C. L., pp. 116-117).
The opinion quoted is exactly in point. The testatrix thumb-mark appears in the center of her name as written by Serapia
de Gala on all of the pages of the will.
The second and third points raised by Sinforoso Ona and Apolinario Gonzales are sufficiently refuted by quoting the last
clause of the body of the will together with the attestation clause, both of which are written in the Tagalog dialect. These
clauses read as follows:
Sa katunayang ang kasulatang ito, na may anim na dahon, ay siyang naglalaman ng aking huling tagubilin, at sa
hindi ko kaalamang lumagda ng aking pangalan, ipinamanhik ko sa aking pamankin na si Serapia de Gala na
isulat ang aking pangalan at apellido, at sa tapat ay inilagda ko ang titik ng kanang daliri kong hinlalaki, sa walkas
at sa bawat isa sa anim (6) na dahon ng kasulatang ito, at ito's ginawa niya sa kautusan at sa harap ko at ng
tatlong saksing nagpapatutuo sa huli ngayon ika dalawang po't tatlo ng Nobiembre ng 1920.
(Sgd.) SEVERINA GONZALES
Pinatutunayan namin na ang kasulatang ito na binubuo ng anim (6) na dahon na pinirmahan sa harap namin ni
Serapia de Gala sa kahilingan ni Severina Gonzales sa wakas at sa mga gilid ng bawa't isa sa anim (6) na dahon
at isinaysay na ang kasulatang ito ay siyang huling habilin o testamento ni Severina Gonzales, ay pinirmahan
namin, bilang mga saksi sa wakas at sa gilid ng bawa't dahon sa harap at sa kahilingan ng tinurang testadora, at
ang bawat isa sa amin ay pumirma sa harap ng lahat at bawat isa sa amin, ngayon ika dalawang po't tatlo ng
noviembre ng taong 1920 ng taong 1920.
(Sgd.) ELEUTERIO NATIVIDAD
JUAN SUMULONG
FRANCISCO NATIVIDAD
The translation in English of the clauses quoted reads as follows:
In virtue of this will, consisting of six pages, that contains my last wish, and because of the fact that I cannot sign
my name, I request my niece Serapia de Gala to write my name, and above this I placed my right thumb-mark at
the end of this will and to each of the six pages of this document, and this was done at my direction and in the
presence of three attesting witnesses, this 23rd of November, 1920.
(Sgd.) SEVERINA GONZALES
We certify that this document, which is composed of six (6) sheets and was signed in our presence by Serapia de
Gala at the request of Severina Gonzales at the end and on the margins of each of the six (6) sheets and was
declared to contain the last will and testament of Severina Gonzales, was signed by us as witnesses at the end
and on the margins of each sheet in the presence and at the request of said testatrix, and each of us signed in the
presence of all and each of us, this 23rd day of November of the year 1920.
(Sgd.) ELEUTERIO NATIVIDAD
JUAN SUMULONG
FRANCISCO NATIVIDAD
As will be seen, it is not mentioned in the attestation clause that the testatrix signed by thumb-mark, but it does there
appear that the signature was affixed in the presence of the witnesses, and the form of the signature is sufficiently
described and explained in the last clause of the body of the will. It maybe conceded that the attestation clause is not
artistically drawn and that, standing alone, it does not quite meet the requirements of the statute, but taken in connection

with the last clause of the body of the will, it is fairly clear and sufficiently carries out the legislative intent; it leaves no
possible doubt as to the authenticity of the document.
The contention of the appellants Sinforoso Ona and Apolinario Gonzales that the fact that the will had been signed in the
presence of the witnesses was not stated in the attestation clause is without merit; the fact is expressly stated in that
clause.
In our opinion, the will is valid, and the orders appealed from are hereby affirmed without costs. So ordered
G.R. No. L-32213 November 26, 1973
AGAPITA N. CRUZ, petitioner,
vs.
HON. JUDGE GUILLERMO P. VILLASOR, Presiding Judge of Branch I, Court of First Instance of Cebu, and MANUEL B.
LUGAY, respondents.
Paul G. Gorrez for petitioner.
Mario D. Ortiz for respondent Manuel B. Lugay.

ESGUERRA, J.:
Petition to review on certiorari the judgment of the Court First Instance of Cebu allowing the probate of the last will a
testament of the late Valente Z. Cruz. Petitioner-appellant Agapita N. Cruz, the surviving spouse of the said decease
opposed the allowance of the will (Exhibit "E"), alleging the will was executed through fraud, deceit, misrepresentation and
undue influence; that the said instrument was execute without the testator having been fully informed of the content
thereof, particularly as to what properties he was disposing and that the supposed last will and testament was not
executed in accordance with law. Notwithstanding her objection, the Court allowed the probate of the said last will and
testament Hence this appeal by certiorari which was given due course.
The only question presented for determination, on which the decision of the case hinges, is whether the supposed last will
and testament of Valente Z. Cruz (Exhibit "E") was executed in accordance with law, particularly Articles 805 and 806 of
the new Civil Code, the first requiring at least three credible witnesses to attest and subscribe to the will, and the second
requiring the testator and the witnesses to acknowledge the will before a notary public.
Of the three instrumental witnesses thereto, namely Deogracias T. Jamaloas Jr., Dr. Francisco Paares and Atty. Angel H.
Teves, Jr., one of them, the last named, is at the same time the Notary Public before whom the will was supposed to have
been acknowledged. Reduced to simpler terms, the question was attested and subscribed by at least three credible
witnesses in the presence of the testator and of each other, considering that the three attesting witnesses must appear
before the notary public to acknowledge the same. As the third witness is the notary public himself, petitioner argues that
the result is that only two witnesses appeared before the notary public to acknowledge the will. On the other hand, private
respondent-appellee, Manuel B. Lugay, who is the supposed executor of the will, following the reasoning of the trial court,
maintains that there is substantial compliance with the legal requirement of having at least three attesting witnesses even
if the notary public acted as one of them, bolstering up his stand with 57 American Jurisprudence, p. 227 which, insofar as
pertinent, reads as follows:
It is said that there are, practical reasons for upholding a will as against the purely technical reason that
one of the witnesses required by law signed as certifying to an acknowledgment of the testator's signature
under oath rather than as attesting the execution of the instrument.
After weighing the merits of the conflicting claims of the parties, We are inclined to sustain that of the appellant that the
last will and testament in question was not executed in accordance with law. The notary public before whom the will was
acknowledged cannot be considered as the third instrumental witness since he cannot acknowledge before himself his
having signed the will. To acknowledge before means to avow (Javellana v. Ledesma, 97 Phil. 258, 262; Castro v. Castro,

100 Phil. 239, 247); to own as genuine, to assent, to admit; and "before" means in front or preceding in space or ahead of.
(The New Webster Encyclopedic Dictionary of the English Language, p. 72; Funk & Wagnalls New Standard Dictionary of
the English Language, p. 252; Webster's New International Dictionary 2d. p. 245.) Consequently, if the third witness were
the notary public himself, he would have to avow assent, or admit his having signed the will in front of himself. This cannot
be done because he cannot split his personality into two so that one will appear before the other to acknowledge his
participation in the making of the will. To permit such a situation to obtain would be sanctioning a sheer absurdity.
Furthermore, the function of a notary public is, among others, to guard against any illegal or immoral arrangement Balinon
v. De Leon, 50 0. G. 583.) That function would defeated if the notary public were one of the attesting instrumental
witnesses. For them he would be interested sustaining the validity of the will as it directly involves him and the validity of
his own act. It would place him in inconsistent position and the very purpose of acknowledgment, which is to minimize
fraud (Report of Code Commission p. 106-107), would be thwarted.
Admittedly, there are American precedents holding that notary public may, in addition, act as a witness to the executive of
the document he has notarized. (Mahilum v. Court Appeals, 64 0. G. 4017; 17 SCRA 482; Sawyer v. Cox, 43 Ill. 130).
There are others holding that his signing merely as notary in a will nonetheless makes him a witness thereon (Ferguson v.
Ferguson, 47 S. E. 2d. 346; In Re Douglas Will, N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S. W. 2d. 911, Tyson Utterback, 122
So. 496; In Re Baybee's Estate 160 N. 900; W. Merill v. Boal, 132 A. 721;See also Trenwith v. Smallwood, 15 So. 1030).
But these authorities do not serve the purpose of the law in this jurisdiction or are not decisive of the issue herein because
the notaries public and witnesses referred to aforecited cases merely acted as instrumental, subscribing attesting
witnesses, and not as acknowledging witnesses. He the notary public acted not only as attesting witness but also
acknowledging witness, a situation not envisaged by Article 805 of the Civil Code which reads:
ART. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The
notary public shall not be required to retain a copy of the will or file another with the office of the Clerk of
Court. [Emphasis supplied]
To allow the notary public to act as third witness, or one the attesting and acknowledging witnesses, would have the effect
of having only two attesting witnesses to the will which would be in contravention of the provisions of Article 80 be
requiring at least three credible witnesses to act as such and of Article 806 which requires that the testator and the
required number of witnesses must appear before the notary public to acknowledge the will. The result would be, as has
been said, that only two witnesses appeared before the notary public for or that purpose. In the circumstances, the law
would not be duly in observed.
FOR ALL THE FOREGOING, the judgment appealed from is hereby reversed and the probate of the last will and
testament of Valente Z. Cruz (Exhibit "E") is declared not valid and hereby set aside.
Cost against the appellee.
Testatee estate of the late Paula Toray. EUSTAQUIA TENEFRANCIA, Petitioner-Appellant, vs. ROSA ABAJA, oppositorappellee.
Ditching and Ditching for petitioner-appellant.
Romeo C. Castillo for oppositor-appellee.
REYES, J.:
This is an appeal from an order of the Court of First Instance of Negros Occidental denying probate of a
will.chanroblesvirtualawlibrary chanrobles virtual law library
The will in question purports to have been executed in August, 1943, by Paula Toray, who died the following month.
Presented for probate by one of the legatees, the herein appellant Eustaquia Tenefrancia, it was opposed by Rosa Abaja,
daughter of the deceased Eulogia Abaja, instituted heir in an earlier will executed by the same testatrix and her deceased
husband. The lower court disallowed the will on the ground that it was not executed in accordance with law in that the
attestation clause did not state that the testatrix signed the will in the presence of the instrumental
witnesses.chanroblesvirtualawlibrary chanrobles virtual law library

Among the formalities prescribed by law (section 618 of Act 190, as amended by Act No. 2645) to a valid will is the
requirement that the attestation clause should state "the fact that the testator signed the will and every page thereof, or
caused some other person to write his name, under his express direction, in the presence of three witnesses." This
requirement was not complied with in the present case, for the attestation clause fails to state that fact. This is obvious
from the following agreed translation of the said attestation clause:
Nosotros Antonio T. Abanilla, Juan G. Mission y Juan Tullao todos vecinos del Barrio Inayauan, Cawayan, Negros
occidental, Filipinas, testigos de este testamento, Testificamos que Paula Toray, la testadora que declaro que este es su
testamento o ultima voluntad y que cuando otorgo este testamento, ella estaba en su sano y cabal juicio, habiendo hecho
constar el mismo, en dos pliegos de papel, firmados por nosotros en presencia de la testadora, y de nosotros tres
testigos en todos los peligros de este testamento.
It is pointed out, however, that the attestation clause states that the testatrix declared in the presence of the three
witnesses that the document in question was her last will or testament, and it is argued that this testament taken together
with the preceding clause which reads: "En fe de todo lo cual firmo con mi nombre este mi testamento o ultima voluntad,
escrito en dialecto visayo que es el dialecto que poseo y hablo, en Inayauan, comprension de Cawayan, Filipinas, hoy a
16 de Agosto de 1943," expresses the idea that the testatrix signed the will in the presence of the witnesses. The
argument is not only far-fetched but it also overlooks the fact that it is in the attestation clause signed the will in the
presence of the subscribing witnesses, since that is one of the statements by law required to be embodied in the
attestation clause. The words above quoted, which, in the will in question, are written above the signature of the testator
and come before the attestation clause, do not form a part of the latter. By the attestation clause is meant "that clause
wherein the witnesses certify that the instrument has been executed before them, and the manner of the execution of the
same." (Black, Law Dictionary.) It is signed not by the testator but by the witnesses, for it is a declaration made by the
witnesses and not by the testator. And the law is clear that it is the attestation clause that must contain a statement,
among others, that the testator signed the will in the presence of the witnesses. Without that statement, the attestation
clause is fatally defective.chanroblesvirtualawlibrary chanrobles virtual law library
This defect is not cured by proof aliunde or even by a judicial finding based upon such proof that the testator did in fact
sign the will in the presence of the subscribing witnesses. That is a fact required by law to be stated in the attestation
clause itself, and it is settled that where it is not so stated it cannot be established by evidence aliunde, and that where
such evidence has been admitted, even without opposition, it should not be given the effect intended. (Uy
Coque vs. Navas L. Sioca, 43 Phil., 405; Quinto vs. Morata, 54 Phil., 481.) In the case last cited this Court had the
following to say:
It is vigorously contended on behalf of the appellant, that the alleged defect of the attestation clause 1 has been cured by
oral evidence, which was admitted without opposition on the part of the appellee. This contention cannot be sustained.
The doctrine of this court with reference to statute of frauds is not applicable to wills. The statute of frauds relates to
contracts and agreements. The subject of wills and testaments and the formalities surrounding their execution are
governed by separate and specific provisions of Act No. 190.chanroblesvirtualawlibrary chanrobles virtual law library
An examination of section 618 of Act No. 190, prior to, and after its amendment by Act No. 2645, shows clearly that the
legislature intended to exclude evidencealiunde tending to establish that the will has been executed and attested in
conformity with the requirements of the law, where such compliance does not appear on the face of the will itself. Prior to
its amendments, section 618 contained the following saving clause: "But the absence of such form of attestation shall not
render the will invalid if is as proven that the will was in fact signed and attested as in this section provided."chanrobles
virtual law library
The most outstanding feature of the amendment of said section 618 by Act No. 2645 is the elimination of said saving
clause and the greater emphasis laid on the formalities as to signatures and the attestation clause. There can be no
doubt, therefore, that the intention of the legislature, in eleminating said clause, was to exclude evidence aliunde, and that
where such evidence was admitted without opposition, it should not be given effect and thus defeat the manifest intention
of the legislation in amending said section 618.chanroblesvirtualawlibrary chanrobles virtual law library
Section 618 of Act No. 190, as amended, should be given a strict interpretation. In the case of Uy Coque vs. Navas L.
Sioca (43 Phil., 405) this court, speaking of the construction to be given to said section, said:

Statutes prescribing the formalities to be observed in the execution of wills are very strictly construed. As stated in 40
Cyc., at page 1097, "A will must be executed in accordance with the statutory requirements; otherwise it is entirely void.
All these requirements stand as of equal importance and must be observed, and courts cannot supply the defective
execution of a will. No power or discretion is vested in them, either to superadd other conditions or dispense with those
enumerated in the statutes. (Uy Coque vs. Navas L. Sioca, 43 Phil., 405, 407.)
It is also urged that the lower court should not have entertained the opposition of Rosa Abaja, who had no legal interest in
the proceeding. But it does not appear that timely objection to the said opposition was made in the court below, and it is
settled that the mere fact that a stranger has been permitted to oppose the allowance of a will is not a reversible error and
does not invalidate the proceedings where no objection is interposed by any of the parties in interest. (Paras vs. Narciso,
35 Phil., 244.) It is true that in the course of Rosa Abaja's declaration, counsel for appellant made some manifestation
tending to question the admissibility of her testimony. But it is not clear that the remark was meant to be an objection to
the opposition itself. And in any event, even without opposition, the lower court could not have legally allowed the will in
question, for under section 618 of Act No. 190, as amended by Act No. 2645, no will shall be valid to pass any estate, real
or personal., nor charge or affect the same unless the attestation clause conforms to the requirements therein provided,
and the imperactive language of the Rules of Court (Rule 77, section 9 [a]) directs that the will "shall be disallowed" if not
executed and "attested as required by law."chanrobles virtual law library
In view of the foregoing, the order appealed from is affirmed, with costs against the
appellant.chanroblesvirtualawlibrary chanrobles virtual law library
Ozaeta, Pablo, Bengzon, Tuason, and Montemayor, JJ., concur.

G.R. No. L-4888

May 25, 1953

JOSE MERZA, petitioner,

vs.
PEDRO LOPEZ PORRAS, respondent.
Primicias, Abad, Mencies & Castillo for petitioner.
Moises Ma. Buhain for respondent.
TUAZON , J.:
This is an appeal from the Court of Appeals which affirmed an order of the Court of First Instance of Zambales
denying the probate of the last will and testament and
so-called codicil, identified as Exhibits A and B, of Pilar Montealegre, deceased. The testatrix was survived by the
husband and collateral relatives, some of whom, along with the husband, were disinherited in Exhibit B for the
reasons set forth therein.
The opposition to Exhibit A was predicated on alleged defects of the attestation clause. Written in the local dialect
known to the testatrix, the attestation clause, as translated into English in the record on appeal, reads:
The foregoing instrument consisting of three pages, on the date above-mentioned, was executed, signed
and published by testatrix Pilar Montealegre and she declared that the said instrument is her last will and
testament; that in our presence and also in the very presence of the said testatrix as likewise in the
presence of two witnesses and the testatrix each of us three witnesses signed this a testament.
The opponent objected that this clause did not estate that the tetratrix and the witnesses had signed each and every
page of the will or that she had signed the instrument in the presence of the witnesses. The Appellate Court
dismissed the first objection, finding that "failure to estate in the attestation clause in question that the testatrix

and/or the witnesses had signed each and every page of Exhibit A were cured by the fact that each one of the page
of the instrument appears to be signed by the testatrix and the three attesting witnesses (Nayve vs. Mojal, 47 Phil.,
152, (1924); Ticson vs. Gorostiza, 57 Phil., (1932); Leynes vs. Leynes, 40 Off. Gaz., 3rd Suppl. (October 18, 1939),
510, 528; Rallos vs. Rallos, 44 Off. Gaz., 4938, 4940)." But granting the correctness of the premise, the court held
the second objection well taken and thus concluded: "The question whether the testatrix had signed in the presence
of said witnesses can not be verified upon physical examination of the instrument. Hence, the absence of the
require statement in said clause may not, pursuant to the decisions of the Supreme Court, be offset by
proof aliunde even if admitted without any objection."
The premise of the conclusion is, in our opinion, incorrect.
It must be admitted that the attestation clause was very poor drawn, its language exceedingly ungrammatical to the
point of being difficult to understand; but from a close examination of the whole context in relation to its purpose the
implication seems clear that the testatrix signed in the presence of the witnesses. Considering that the witnesses'
only business at hand was to sign and attest to the testatrix's signing of the document, and that the only actors of
the proceeding were the maker and the witnesses acting and speaking collectively and in the first person, the
phrase "in our presence," used as it was in connection with the process of signing, can not imply anything but the
testatrix signed before them. No other inference is possible. The prepositional phrase "in our presence" denotes an
active verb and the verb a subject. The verb could not be other than signed and the subject no other than the
testatrix.
The use of the word "also" is no less enlightening. It denotes that, as each of the witnesses sign in the presence of
the testatrix and of one another, so the testatrix sign in similar or like manner in their presence.
In consonance with the principle of the liberal interpretation, adhered to in numerous later decision of this Court and
affirmed and translated into inactment in the new Civil Code (Article 827), we are constrained to hold the attestation
clause under consideration sufficient and valid.
"Precision of language in the drafting of the attestation clause is desirable. However, it is not imperative that a
parrot-like copy of the word of the statue be made. It is sufficient if from the language employed it can reasonably be
deduced that the attestation clause fulfills what the law expects of it." (Ticson vs. Gorostiza, supra.)
"It could have been the intention of the legislature in providing for the essential safeguards in the execution of a will
to shackle the very right of the testamentary disposition which the law recognizes and holds sacred."
(Leynesvs. Leynes, supra.)
With reference of Exhibit B the Court of Appeal agreed with the trial court that the document having been executed
one day before Exhibit A could not be considered as a codicil "because a codicil, as the word implies, is only an
addition to, or modification of, the will." The Court of Appeals added that "the content of Exhibit B are couched in the
language of ordinarily used in a simple affidavit and as such, may not have the legal effect and force to a
testamentary disposition." Furthermore, the Court of Appeals observed, disinheritance "may not be made in any
instrument other than the will of Exhibit A, as expressly provided for in article 849 of the Civil Code," and, "there
being no disposition as to the disinheritance of the oppositor, Pedro Lopez Porras (the surviving spouse), in the said
Exhibit A, it is quite clear that he can not be disinherited in any other instrument including Exhibit B, which is, as
above stated, a simple affidavit."
Exhibit B does partake of the nature of a will. A will is defined in article 667 of the Civil code of Spain as "the act by
which a persons dispose of all his property or a portion of it," and in article 783 of the new Civil Code as "an act
whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of
his estate, to take effect after his death. Exhibit B comes within this definition.
Being of testamentary character and having been made with all the formalities of law, Exhibit B is entitled to probate
as an independent testementary desposition. In the absence of any legal provision to the contrary and there is
none in this jurisdiction it is the general, well-established rule that two separate and distinct wills may be probated

if one does not revoke the other (68 C.J., 885) and provided that the statutory requirements relative to the execution
of wills have been complied with (Id. 881). As seen, Exhibit B embodied all the requisites of a will, even free of such
formal of literary imperfections as are found in Exhibit A.
It also follows that Exhibit B is a legal and effective vehicle for excluding lawful heirs from testate or intestate
succession. Article 849 of the Civil Code of Spain does not, as the appealed decision seems to insinuate, require
that the disinheritance should be accomplished in the same instrument by which the maker provides the disposition
of his or her property after his or death. This article merely provides that "disinheritance can be affected only by a
will (any will) in which the legal cause upon which it is based is expressly stated."
It is our judgment therefore that the instruments Exhibit A and B admitted to probate, subject of courts to the right of
the disinherited person under particle 850 to contest the disinheritance, and it is so ordered, with costs against the
appellee.
G.R. No. L-35586

October 31, 1932

Estate of the deceased Caridad Alcantara de Gorostiza.

CONSORCIA DICHOSO DE TICSON, petitioner-appellant,
vs.
MARINO DE GOROSTIZA, oppositor-appellee.
Ramon Diokno for appellant.
Guevara, Francisco and Recto for appellee.

MALCOLM, J.:
The will of the deceased Caridad Alcantara de Gorostiza was denied probate in the trial court, for the reason that
the attestation clause failed to state that the testatrix signed every page of the will as required by section 618, as
amended, of the Code of Civil Procedure. The attestation clause in question reads:
"We the undersigned attesting witnesses, whose residences are stated opposite our respective names, do hereby
certify that the testatrix, whose name is signed hereinabove, has publish unto us the foregoing will consisting of two
pages as her Last Will and Testament and has signed the same in our presence, and in witness whereof we have
each signed the same and each page thereof in the presence of said testatrix and in the presence of each other."
The single question is, if the attestation clause above quoted is fatally defective and so annuls the will, or if the said
attestation clause conforms to the law and so permits the court to respect the wishes of the deceased and to sustain
the will.
The theses of the appellant and the appellee are as far apart as the poles. Appellant says that when the attestation
clause mentions "the testratrix, whose name is signed hereinabove", the word "hereinabove" should be taken as not
only referring to the signature at the end of the will but to the signatures on the margin of its two pages, and that
when later the attestation clause mentions "the foregoing will consisting of two pages as her Last Will and
Testament, and has signed the same", the word "same" refers to the two pages of the will and not to the will itself.
Appellee on the other hand maintains that in the attestation clause, all that has been said about the testatrix, "whose
name is signed hereinabove" is that "she has signed the same (will) in our (witnesses) presence", and that the
attestation clause does not set forth that the testatrix has signed every page of the will in the presence of the
attesting witnesses.
Placing the attestation clause under the judicial microscope, we observe, after analytical study, that it shows
compliance with statutory provisions. We must reject as untenable the interpretation of the appellant relative to the
word "hereinabove", for this simply has reference to the signature of the testatrix at the end of the will. We must
reject also as untenable the interpretation of the appellant that the word "same" refers back to "pages" and not to

"will", for such an interpretation would be inconsistent with the language used further on in the attestation clause
where mention is made of the signing by the witnesses of "the same and each page thereof", meaning the will and
each page thereof. We are, however, clear that when the attestation clause states that the testatrix "has publish
unto us the foregoing will consisting of two pages as her Last Will and Testament, and has signed the same", the
word "same" signifies the foregoing will consisting of two pages, which necessarily implies the signature by the
testatrix of the will and every page thereof. In our judgment, an interpretation sustaining the validity of the attestation
clause is neither forced nor illogical.
Precision of language in the drafting of an attestation clause is desirable. However, it is not imperative that a parrotlike copy of the words of the statute be made. It is sufficient if from the language employed it can reasonably de
deduced that the attestation clause fulfills what the law expects of it.
There is another aspect to the case. Evidence of course may not be admitted to supply omissions in an attestation
clause. The attestation clause must show on its face a compliance with the law. But this does not preclude an
examination of the will, and here the will itself shows that the testatrix and the witnesses signed on the left-hand
margin of the two pages; that the testatrix signed at the end of the will, and that the witnesses signed at the end of
the attestation clause. The attestation clause is a part of the instrument which so closely, if not literally, adheres to
the law of wills.
It has been observed during our deliberations that a decision upholding the will before us would run counter to a
uniform line of authorities to the contrary. That is hardly an exact statement. The truth is that there have been
noticeable in the Philippines two divergent tendencies in the law of wills the one being planted on strict
construction and the other on liberal construction. A late example of the former views may be found in the decision
in Rodriguez vs. Alcala ([1930], 55 Phil., 150), sanctioning a literal enforcement of the law. The basic case in the
other direction, predicated on reason, is Abangan vs. Abangan ([1919], 40 Phil., 476), oft-cited approvingly in later
decisions.
The attestation clause here is an exact transcription of the form found in former Justice Fisher's New Encyclopedia
of Philippine Legal Forms, third edition, page 495, except that, by typographical error, the word "published" has been
written "publish". So it would be a safe assumption that there are other wills in this jurisdiction having similar
attestation clauses. A decision against the will in this case might accordingly have far-reaching and disastrous
results.
Legalistic formalities should not be permitted to obscure the use of good sound common sense in the consideration
of wills and to frustrate the wishes of deceased persons solemnly expressed in testaments, regarding the execution
of which there is not even a hint of bad faith or fraud. We find the attestation clause legally sufficient, and order that
the will of the deceased Caridad Alcantara de Gorostiza be admitted to probate.
Judgment reversed, the costs of both instances to be paid by the appellee.
G.R. No. 122880

April 12, 2006

FELIX AZUELA, Petitioner,

vs.
COURT OF APPEALS, GERALDA AIDA CASTILLO substituted by ERNESTO G. CASTILLO, Respondents.
DECISION
TINGA, J.:
The core of this petition is a highly defective notarial will, purportedly executed by Eugenia E. Igsolo (decedent),
who died on 16 December 1982 at the age of 80. In refusing to give legal recognition to the due execution of this
document, the Court is provided the opportunity to assert a few important doctrinal rules in the execution of notarial
wills, all self-evident in view of Articles 805 and 806 of the Civil Code.

A will whose attestation clause does not contain the number of pages on which the will is written is fatally defective.
A will whose attestation clause is not signed by the instrumental witnesses is fatally defective. And perhaps most
importantly, a will which does not contain an acknowledgment, but a merejurat, is fatally defective. Any one of these
defects is sufficient to deny probate. A notarial will with all three defects is just aching for judicial rejection.
There is a distinct and consequential reason the Civil Code provides a comprehensive catalog of imperatives for the
proper execution of a notarial will. Full and faithful compliance with all the detailed requisites under Article 805 of the
Code leave little room for doubt as to the validity in the due execution of the notarial will. Article 806 likewise
imposes another safeguard to the validity of notarial wills that they be acknowledged before a notary public by
the testator and the witnesses. A notarial will executed with indifference to these two codal provisions opens itself to
nagging questions as to its legitimacy.
The case stems from a petition for probate filed on 10 April 1984 with the Regional Trial Court (RTC) of Manila. The
petition filed by petitioner Felix Azuela sought to admit to probate the notarial will of Eugenia E. Igsolo, which was
notarized on 10 June 1981. Petitioner is the son of the cousin of the decedent.
The will, consisting of two (2) pages and written in the vernacular Pilipino, read in full:
HULING HABILIN NI EUGENIA E. IGSOLO
SA NGALAN NG MAYKAPAL, AMEN:
AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St., Sampaloc, Manila, pitongput siyam (79) na gulang,
nasa hustong pagi-isip, pag-unawa at memoria ay nag-hahayag na ito na ang aking huling habilin at testamento, at
binabali wala ko lahat ang naunang ginawang habilin o testamento:
Una-Hinihiling ko na ako ay mailibing sa Sementerio del Norte, La Loma sang-ayong sa kaugalian at patakaran ng
simbahang katoliko at ang taga-pag-ingat (Executor) ng habiling ito ay magtatayo ng bantayog upang silbing ala-ala
sa akin ng aking pamilya at kaibigan;
Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng karapatan sa aking pamangkin na si Felix Azuela, na
siyang nag-alaga sa akin sa mahabang panahon, yaong mga bahay na nakatirik sa lote numero 28, Block 24 at
nakapangalan sa Pechaten Korporasyon, ganoon din ibinibigay ko ang lahat ng karapatan sa bahay na nakatirik sa
inoopahan kong lote, numero 43, Block 24 na pag-aari ng Pechaten Corporation. Ipinagkakaloob kong buong buo
ang lahat ng karapatan sa bahay at lupa na nasa 500 San Diego St., Lot 42, Block 24, Sampaloc, Manila kay Felix
Azuela at ang pagkakaloob kong ito ay walang pasubalit at kondiciones;
Pangatlo- Na ninunumbrahan ko si VART PAGUE na siyang nagpapatupad ng huling habiling ito at kagustuhan ko
rin na hindi na kailanman siyang mag-lagak ng piyansiya.
Aking nilagdaan ang Huling Habilin na ito dito sa Maynila ika 10 ng Hunyo, 1981.
(Sgd.)
EUGENIA E. IGSOLO
(Tagapagmana)
PATUNAY NG MGA SAKSI
Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling dahong ito, na ipinahayag sa amin ni Eugenia E.
Igsolo, tagapagmana na siya niyang Huling Habilin, ngayon ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing
tagapagmana sa ilalim ng kasulatang nabanggit at sa kaliwang panig ng lahat at bawat dahon, sa harap ng lahat at
bawat sa amin, at kami namang mga saksi ay lumagda sa harap ng nasabing tagapagmana at sa harap ng lahat at
bawat isa sa amin, sa ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at bawat dahon ng kasulatan ito.

EUGENIA E. IGSOLO
address: 500 San Diego St.
Sampaloc, Manila Res. Cert. No. A-7717-37
Issued at Manila on March 10, 1981.
QUIRINO AGRAVA
address: 1228-Int. 3, Kahilum
Pandacan, Manila Res. Cert. No. A-458365
Issued at Manila on Jan. 21, 1981
LAMBERTO C. LEAO
address: Avenue 2, Blcok 7,
Lot 61, San Gabriel, G.MA., Cavite Res.
Cert. No. A-768277 issued at Carmona, Cavite on Feb. 7, 1981
JUANITO ESTRERA
address: City Court Compound,
City of Manila Res. Cert. No. A574829
Issued at Manila on March 2, 1981.
Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981 dito sa Lungsod ng Maynila.
(Sgd.)
PETRONIO Y. BAUTISTA
Doc. No. 1232 ; NOTARIO PUBLIKO
Page No. 86 ; Until Dec. 31, 1981
Book No. 43 ; PTR-152041-1/2/81-Manila
Series of 1981 TAN # 1437-977-81
The three named witnesses to the will affixed their signatures on the left-hand margin of both pages of the will, but
not at the bottom of the attestation clause.
The probate petition adverted to only two (2) heirs, legatees and devisees of the decedent, namely: petitioner
himself, and one Irene Lynn Igsolo, who was alleged to have resided abroad. Petitioner prayed that the will be
allowed, and that letters testamentary be issued to the designated executor, Vart Prague.
The petition was opposed by Geralda Aida Castillo (Geralda Castillo), who represented herself as the attorney-infact of "the 12 legitimate heirs" of the decedent.2 Geralda Castillo claimed that the will is a forgery, and that the true
purpose of its emergence was so it could be utilized as a defense in several court cases filed by oppositor against
petitioner, particularly for forcible entry and usurpation of real property, all centering on petitioners right to occupy
the properties of the decedent.3 It also asserted that contrary to the representations of petitioner, the decedent was
actually survived by 12 legitimate heirs, namely her grandchildren, who were then residing abroad. Per records, it
was subsequently alleged that decedent was the widow of Bonifacio Igsolo, who died in 1965, 4 and the mother of a
legitimate child, Asuncion E. Igsolo, who predeceased her mother by three (3) months. 5
Oppositor Geralda Castillo also argued that the will was not executed and attested to in accordance with law. She
pointed out that decedents signature did not appear on the second page of the will, and the will was not properly
acknowledged. These twin arguments are among the central matters to this petition.
After due trial, the RTC admitted the will to probate, in an Order dated 10 August 1992. 6 The RTC favorably took into
account the testimony of the three (3) witnesses to the will, Quirino Agrava, Lamberto Leano, and Juanito Estrada.
The RTC also called to fore "the modern tendency in respect to the formalities in the execution of a will x x x with the

end in view of giving the testator more freedom in expressing his last wishes;" 7 and from this perspective, rebutted
oppositors arguments that the will was not properly executed and attested to in accordance with law.
After a careful examination of the will and consideration of the testimonies of the subscribing and attesting
witnesses, and having in mind the modern tendency in respect to the formalities in the execution of a will, i.e., the
liberalization of the interpretation of the law on the formal requirements of a will with the end in view of giving the
testator more freedom in expressing his last wishes, this Court is persuaded to rule that the will in question is
authentic and had been executed by the testatrix in accordance with law.
On the issue of lack of acknowledgement, this Court has noted that at the end of the will after the signature of the
testatrix, the following statement is made under the sub-title, "Patunay Ng Mga Saksi":
"Ang kasulatang ito, na binubuo ng _____ dahon pati ang huling dahong ito, na ipinahayag sa amin ni Eugenia N.
Igsolo, tagapagmana na siya niyang Huling Habilin, ngayong ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing
tagapagmana sa ilalim ng kasulatang nabanggit at sa kaliwang panig ng lahat at bawat dahon, sa harap ng lahat at
bawat sa amin, at kami namang mga saksi ay lumagda sa harap ng nasabing tagapagmana at sa harap ng lahat at
bawat isa sa amin, sa ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at bawat dahon ng kasulatan ito."
The aforequoted declaration comprises the attestation clause and the acknowledgement and is considered by this
Court as a substantial compliance with the requirements of the law.
On the oppositors contention that the attestation clause was not signed by the subscribing witnesses at the bottom
thereof, this Court is of the view that the signing by the subscribing witnesses on the left margin of the second page
of the will containing the attestation clause and acknowledgment, instead of at the bottom thereof, substantially
satisfies the purpose of identification and attestation of the will.
With regard to the oppositors argument that the will was not numbered correlatively in letters placed on upper part
of each page and that the attestation did not state the number of pages thereof, it is worthy to note that the will is
composed of only two pages. The first page contains the entire text of the testamentary dispositions, and the second
page contains the last portion of the attestation clause and acknowledgement. Such being so, the defects are not of
a serious nature as to invalidate the will. For the same reason, the failure of the testatrix to affix her signature on the
left margin of the second page, which contains only the last portion of the attestation clause and acknowledgment is
not a fatal defect.
As regards the oppositors assertion that the signature of the testatrix on the will is a forgery, the testimonies of the
three subscribing witnesses to the will are convincing enough to establish the genuineness of the signature of the
testatrix and the due execution of the will.8
The Order was appealed to the Court of Appeals by Ernesto Castillo, who had substituted his since deceased
mother-in-law, Geralda Castillo. In a Decision dated 17 August 1995, the Court of Appeals reversed the trial court
and ordered the dismissal of the petition for probate.9 The Court of Appeals noted that the attestation clause failed to
state the number of pages used in the will, thus rendering the will void and undeserving of probate. 10
Hence, the present petition.
Petitioner argues that the requirement under Article 805 of the Civil Code that "the number of pages used in a
notarial will be stated in the attestation clause" is merely directory, rather than mandatory, and thus susceptible to
what he termed as "the substantial compliance rule."11
The solution to this case calls for the application of Articles 805 and 806 of the Civil Code, which we replicate in full.
Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by
the testator's name written by some other person in his presence, and by his express direction, and attested and
subscribed by three or more credible witnesses in the presence of the testator and of one another.

The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also
sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be
numbered correlatively in letters placed on the upper part of each page.
The attestation shall state the number of pages used upon which the will is written, and the fact that the testator
signed the will and every page thereof, or caused some other person to write his name, under his express direction,
in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages
thereof in the presence of the testator and of one another.
If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them.
Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary
public shall not be required to retain a copy of the will, or file another with the office of the Clerk of Court.
The appellate court, in its Decision, considered only one defect, the failure of the attestation clause to state the
number of pages of the will. But an examination of the will itself reveals several more deficiencies.
As admitted by petitioner himself, the attestation clause fails to state the number of pages of the will. 12 There was an
incomplete attempt to comply with this requisite, a space having been allotted for the insertion of the number of
pages in the attestation clause. Yet the blank was never filled in; hence, the requisite was left uncomplied with.
The Court of Appeals pounced on this defect in reversing the trial court, citing in the process Uy Coque v. Navas L.
Sioca13 and In re: Will of Andrada.14 In Uy Coque, the Court noted that among the defects of the will in question was
the failure of the attestation clause to state the number of pages contained in the will. 15 In ruling that the will could
not be admitted to probate, the Court made the following consideration which remains highly relevant to this day:
"The purpose of requiring the number of sheets to be stated in the attestation clause is obvious; the document might
easily be so prepared that the removal of a sheet would completely change the testamentary dispositions of the will
and in the absence of a statement of the total number of sheets such removal might be effected by taking out the
sheet and changing the numbers at the top of the following sheets or pages. If, on the other hand, the total number
of sheets is stated in the attestation clause the falsification of the document will involve the inserting of new pages
and the forging of the signatures of the testator and witnesses in the margin, a matter attended with much greater
difficulty."16
The case of In re Will of Andrada concerned a will the attestation clause of which failed to state the number of
sheets or pages used. This consideration alone was sufficient for the Court to declare "unanim[ity] upon the point
that the defect pointed out in the attesting clause is fatal." 17 It was further observed that "it cannot be denied that the
x x x requirement affords additional security against the danger that the will may be tampered with; and as the
Legislature has seen fit to prescribe this requirement, it must be considered material." 18
Against these cited cases, petitioner cites Singson v. Florentino19 and Taboada v. Hon. Rosal,20 wherein the Court
allowed probate to the wills concerned therein despite the fact that the attestation clause did not state the number of
pages of the will. Yet the appellate court itself considered the import of these two cases, and made the following
distinction which petitioner is unable to rebut, and which we adopt with approval:
Even a cursory examination of the Will (Exhibit "D"), will readily show that the attestation does not state the number
of pages used upon which the will is written. Hence, the Will is void and undeserving of probate.
We are not impervious of the Decisions of the Supreme Court in "Manuel Singson versus Emilia Florentino, et al.,
92 Phil. 161 and Apolonio [Taboada] versus Hon. Avelino Rosal, et al., 118 SCRA 195," to the effect that a will may
still be valid even if the attestation does not contain the number of pages used upon which the Will is written.
However, the Decisions of the Supreme Court are not applicable in the aforementioned appeal at bench. This is so
because, in the case of "Manuel Singson versus Emilia Florentino, et al., supra," although the attestation in the
subject Will did not state the number of pages used in the will, however, the same was found in the last part of the
body of the Will:

"x x x
The law referred to is article 618 of the Code of Civil Procedure, as amended by Act No. 2645, which requires that
the attestation clause shall state the number of pages or sheets upon which the will is written, which requirement
has been held to be mandatory as an effective safeguard against the possibility of interpolation or omission of some
of the pages of the will to the prejudice of the heirs to whom the property is intended to be bequeathed (In re Will of
Andrada, 42 Phil. 180; Uy Coque vs. Navas L. Sioca, 43 Phil., 405; Gumban vs. Gorcho, 50 Phil. 30; Quinto vs.
Morata, 54 Phil. 481; Echevarria vs. Sarmiento, 66 Phil. 611). The ratio decidendi of these cases seems to be that
the attestation clause must contain a statement of the number of sheets or pages composing the will and that if this
is missing or is omitted, it will have the effect of invalidating the will if the deficiency cannot be supplied, not by
evidence aliunde, but by a consideration or examination of the will itself. But here the situation is different. While the
attestation clause does not state the number of sheets or pages upon which the will is written, however, the last part
of the body of the will contains a statement that it is composed of eight pages, which circumstance in our opinion
takes this case out of the rigid rule of construction and places it within the realm of similar cases where a broad and
more liberal view has been adopted to prevent the will of the testator from being defeated by purely technical
considerations." (page 165-165, supra) (Underscoring supplied)
In "Apolonio Tabaoda versus Hon. Avelino Rosal, et al." supra, the notarial acknowledgement in the Will states the
number of pages used in the:
"x x x
We have examined the will in question and noticed that the attestation clause failed to state the number of pages
used in writing the will. This would have been a fatal defect were it not for the fact that, in this case, it is discernible
from the entire will that it is really and actually composed of only two pages duly signed by the testatrix and her
instrumental witnesses. As earlier stated, the first page which contains the entirety of the testamentary dispositions
is signed by the testatrix at the end or at the bottom while the instrumental witnesses signed at the left margin. The
other page which is marked as "Pagina dos" comprises the attestation clause and the acknowledgment. The
acknowledgment itself states that "this Last Will and Testament consists of two pages including this page" (pages
200-201, supra) (Underscoring supplied).
However, in the appeal at bench, the number of pages used in the will is not stated in any part of the Will. The will
does not even contain any notarial acknowledgment wherein the number of pages of the will should be stated. 21
Both Uy Coque and Andrada were decided prior to the enactment of the Civil Code in 1950, at a time when the
statutory provision governing the formal requirement of wills was Section
618 of the Code of Civil Procedure.22 Reliance on these cases remains apropos, considering that the requirement
that the attestation state the number of pages of the will is extant from Section 618. 23 However, the enactment of the
Civil Code in 1950 did put in force a rule of interpretation of the requirements of wills, at least insofar as the
attestation clause is concerned, that may vary from the philosophy that governed these two cases. Article 809 of the
Civil Code states: "In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence,
defects and imperfections in the form of attestation or in the language used therein shall not render the will invalid if
it is proved that the will was in fact executed and attested in substantial compliance with all the requirements of
article 805."
In the same vein, petitioner cites the report of the Civil Code Commission, which stated that "the underlying and
fundamental objective permeating the provisions on the [law] on [wills] in this project consists in the [liberalization] of
the manner of their execution with the end in view of giving the testator more [freedom] in [expressing] his last
wishes. This objective is in accord with the [modern tendency] in respect to the formalities in the execution of
wills."24 However, petitioner conveniently omits the qualification offered by the Code Commission in the very same
paragraph he cites from their report, that such liberalization be "but with sufficient safeguards and restrictions to
prevent the commission of fraud and the exercise of undue and improper pressure and influence upon the
testator."25

Caneda v. Court of Appeals26 features an extensive discussion made by Justice Regalado, speaking for the Court on
the conflicting views on the manner of interpretation of the legal formalities required in the execution of the
attestation clause in wills.27 Uy Coque and Andrada are cited therein, along with several other cases, as examples of
the application of the rule of strict construction.28 However, the Code Commission opted to recommend a more
liberal construction through the "substantial compliance rule" under Article 809. A cautionary note was struck though
by Justice J.B.L. Reyes as to how Article 809 should be applied:
x x x The rule must be limited to disregarding those defects that can be supplied by an examination of the will itself:
whether all the pages are consecutively numbered; whether the signatures appear in each and every page; whether
the subscribing witnesses are three or the will was notarized. All these are facts that the will itself can reveal, and
defects or even omissions concerning them in the attestation clause can be safely disregarded. But the total number
of pages, and whether all persons required to sign did so in the presence of each other must substantially appear in
the attestation clause, being the only check against perjury in the probate proceedings.29 (Emphasis supplied.)
The Court of Appeals did cite these comments by Justice J.B.L. Reyes in its assailed decision, considering that the
failure to state the number of pages of the will in the attestation clause is one of the defects which cannot be simply
disregarded. In Caneda itself, the Court refused to allow the probate of a will whose attestation clause failed to state
that the witnesses subscribed their respective signatures to the will in the presence of the testator and of each
other,30 the other omission cited by Justice J.B.L. Reyes which to his estimation cannot be lightly disregarded.
Caneda suggested: "[I]t may thus be stated that the rule, as it now stands, is that omission which can be supplied by
an examination of the will itself, without the need of resorting to extrinsic evidence, will not be fatal and,
correspondingly, would not obstruct the allowance to probate of the will being assailed. However, those omissions
which cannot be supplied except by evidence aliunde would result in the invalidation of the attestation clause and
ultimately, of the will itself."31 Thus, a failure by the attestation clause to state that the testator signed every page can
be liberally construed, since that fact can be checked by a visual examination; while a failure by the attestation
clause to state that the witnesses signed in one anothers presence should be considered a fatal flaw since the
attestation is the only textual guarantee of compliance.32
The failure of the attestation clause to state the number of pages on which the will was written remains a fatal flaw,
despite Article 809. The purpose of the law in requiring the clause to state the number of pages on which the will is
written is to safeguard against possible interpolation or omission of one or some of its pages and to prevent any
increase or decrease in the pages.33 The failure to state the number of pages equates with the absence of an
averment on the part of the instrumental witnesses as to how many pages consisted the will, the execution of which
they had ostensibly just witnessed and subscribed to. Following Caneda, there is substantial compliance with this
requirement if the will states elsewhere in it how many pages it is comprised of, as was the situation
inSingson and Taboada. However, in this case, there could have been no substantial compliance with the
requirements under Article 805 since there is no statement in the attestation clause or anywhere in the will itself as
to the number of pages which comprise the will.
At the same time, Article 809 should not deviate from the need to comply with the formal requirements as
enumerated under Article 805. Whatever the inclinations of the members of the Code Commission in incorporating
Article 805, the fact remains that they saw fit to prescribe substantially the same formal requisites as enumerated in
Section 618 of the Code of Civil Procedure, convinced that these remained effective safeguards against the forgery
or intercalation of notarial wills.34 Compliance with these requirements, however picayune in impression, affords the
public a high degree of comfort that the testator himself or herself had decided to convey property post mortem in
the manner established in the will.35 The transcendent legislative intent, even as expressed in the cited comments of
the Code Commission, is for the fruition of the testators incontestable desires, and not for the indulgent admission
of wills to probate.
The Court could thus end here and affirm the Court of Appeals. However, an examination of the will itself reveals a
couple of even more critical defects that should necessarily lead to its rejection.

For one, the attestation clause was not signed by the instrumental witnesses. While the signatures of the
instrumental witnesses appear on the left-hand margin of the will, they do not appear at the bottom of the attestation
clause which after all consists of their averments before the notary public.
Cagro v. Cagro36 is material on this point. As in this case, "the signatures of the three witnesses to the will do not
appear at the bottom of the attestation clause, although the page containing the same is signed by the witnesses on
the left-hand margin."37 While three (3) Justices38 considered the signature requirement had been substantially
complied with, a majority of six (6), speaking through Chief Justice Paras, ruled that the attestation clause had not
been duly signed, rendering the will fatally defective.
There is no question that the signatures of the three witnesses to the will do not appear at the bottom of the
attestation clause, although the page containing the same is signed by the witnesses on the left-hand margin.
We are of the opinion that the position taken by the appellant is correct. The attestation clause is "a memorandum of
the facts attending the execution of the will" required by law to be made by the attesting witnesses, and it must
necessarily bear their signatures. An unsigned attestation clause cannot be considered as an act of the witnesses,
since the omission of their signatures at the bottom thereof negatives their participation.
The petitioner and appellee contends that signatures of the three witnesses on the left-hand margin conform
substantially to the law and may be deemed as their signatures to the attestation clause. This is untenable, because
said signatures are in compliance with the legal mandate that the will be signed on the left-hand margin of all its
pages. If an attestation clause not signed by the three witnesses at the bottom thereof, be admitted as sufficient, it
would be easy to add such clause to a will on a subsequent occasion and in the absence of the testator and any or
all of the witnesses.39
The Court today reiterates the continued efficacy of Cagro. Article 805 particularly segregates the requirement that
the instrumental witnesses sign each page of the will, from the requisite that the will be "attested and subscribed by
[the instrumental witnesses]." The respective intents behind these two classes of signature are distinct from each
other. The signatures on the left-hand corner of every page signify, among others, that the witnesses are aware that
the page they are signing forms part of the will. On the other hand, the signatures to the attestation clause establish
that the witnesses are referring to the statements contained in the attestation clause itself. Indeed, the attestation
clause is separate and apart from the disposition of the will. An unsigned attestation clause results in an unattested
will. Even if the instrumental witnesses signed the left-hand margin of the page containing the unsigned attestation
clause, such signatures cannot demonstrate these witnesses undertakings in the clause, since the signatures that
do appear on the page were directed towards a wholly different avowal.
The Court may be more charitably disposed had the witnesses in this case signed the attestation clause itself, but
not the left-hand margin of the page containing such clause. Without diminishing the value of the instrumental
witnesses signatures on each and every page, the fact must be noted that it is the attestation clause which contains
the utterances reduced into writing of the testamentary witnesses themselves. It is the witnesses, and not the
testator, who are required under Article 805 to state the number of pages used upon which the will is written; the fact
that the testator had signed the will and every page thereof; and that they witnessed and signed the will and all the
pages thereof in the presence of the testator and of one another. The only proof in the will that the witnesses have
stated these elemental facts would be their signatures on the attestation clause.
Thus, the subject will cannot be considered to have been validly attested to by the instrumental witnesses, as they
failed to sign the attestation clause.
Yet, there is another fatal defect to the will on which the denial of this petition should also hinge. The requirement
under Article 806 that "every will must be acknowledged before a notary public by the testator and the witnesses"
has also not been complied with. The importance of this requirement is highlighted by the fact that it had been
segregated from the other requirements under Article 805 and entrusted into a separate provision, Article 806. The
non-observance of Article 806 in this case is equally as critical as the other cited flaws in compliance with Article
805, and should be treated as of equivalent import.

In lieu of an acknowledgment, the notary public, Petronio Y. Bautista, wrote "Nilagdaan ko at ninotario ko
ngayong10 ng Hunyo 10 (sic), 1981 dito sa Lungsod ng Maynila."40 By no manner of contemplation can those words
be construed as an acknowledgment. An acknowledgment is the act of one who has executed a deed in going
before some competent officer or court and declaring it to be his act or deed. 41 It involves an extra step undertaken
whereby the signor actually declares to the notary that the executor of a document has attested to the notary that
the same is his/her own free act and deed.
It might be possible to construe the averment as a jurat, even though it does not hew to the usual language thereof.
A jurat is that part of an affidavit where the notary certifies that before him/her, the document was subscribed and
sworn to by the executor.42 Ordinarily, the language of the jurat should avow that the document was subscribed and
sworn before the notary public, while in this case, the notary public averred that he himself "signed and notarized"
the document. Possibly though, the word "ninotario" or "notarized" encompasses the signing of and swearing in of
the executors of the document, which in this case would involve the decedent and the instrumental witnesses.
Yet even if we consider what was affixed by the notary public as a jurat, the will would nonetheless remain invalid,
as the express requirement of Article 806 is that the will be "acknowledged", and not merely subscribed and sworn
to. The will does not present any textual proof, much less one under oath, that the decedent and the instrumental
witnesses executed or signed the will as their own free act or deed. The acknowledgment made in a will provides for
another all-important legal safeguard against spurious wills or those made beyond the free consent of the testator.
An acknowledgement is not an empty meaningless act.43 The acknowledgment coerces the testator and the
instrumental witnesses to declare before an officer of the law that they had executed and subscribed to the will as
their own free act or deed. Such declaration is under oath and under pain of perjury, thus allowing for the criminal
prosecution of persons who participate in the execution of spurious wills, or those executed without the free consent
of the testator. It also provides a further degree of assurance that the testator is of certain mindset in making the
testamentary dispositions to those persons he/she had designated in the will.
It may not have been said before, but we can assert the rule, self-evident as it is under Article 806. A notarial will
that is not acknowledged before a notary public by the testator and the witnesses is fatally defective, even if it is
subscribed and sworn to before a notary public.
There are two other requirements under Article 805 which were not fully satisfied by the will in question. We need
not discuss them at length, as they are no longer material to the
disposition of this case. The provision requires that the testator and the instrumental witnesses sign each and every
page of the will on the left margin, except the last; and that all the pages shall be numbered correlatively in letters
placed on the upper part of each page. In this case, the decedent, unlike the witnesses, failed to sign both pages of
the will on the left margin, her only signature appearing at the so-called "logical end" 44 of the will on its first page.
Also, the will itself is not numbered correlatively in letters on each page, but instead numbered with Arabic numerals.
There is a line of thought that has disabused the notion that these two requirements be construed as
mandatory.45 Taken in isolation, these omissions, by themselves, may not be sufficient to deny probate to a will. Yet
even as these omissions are not decisive to the adjudication of this case, they need not be dwelt on, though
indicative as they may be of a general lack of due regard for the requirements under Article 805 by whoever
executed the will.
All told, the string of mortal defects which the will in question suffers from makes the probate denial inexorable.
WHEREFORE, the petition is DENIED. Costs against petitioner.
SO ORDERED.